Opinion
3431-15
04-14-2016
Miladah Lova, Landlord-Petitioner, v. Joette Greg, Respondent-Tenant.
Attorney for Petitioner: Osvaldo J. Gonzalez, Esq. 10 Gramatan Avenue Mount Vernon, New York 10550 Attorneys for Respondent: Jerry F. Kebrdle II, Esq. Legal Services of the Hudson Valley 235 Mamaroneck Avenue-Suite 403 White Plains, New York 10605
Attorney for Petitioner: Osvaldo J. Gonzalez, Esq. 10 Gramatan Avenue Mount Vernon, New York 10550 Attorneys for Respondent: Jerry F. Kebrdle II, Esq. Legal Services of the Hudson Valley 235 Mamaroneck Avenue-Suite 403 White Plains, New York 10605 Adam Seiden, J.
In this holdover proceeding, respondent asserted in her answer the affirmative defense that the Thirty-Day Notice to Terminate was not properly served upon her. On the December 22, 2015, both sides appeared and the matter was adjourned to January 6, 2016 for a Traverse hearing.
The holdover petition served on the respondent in this proceeding states that respondent entered into possession of the subject property under an oral agreement and that respondent's agreed upon term expired on October 1, 2015. The petition further states that a Thirty Day Notice of Termination was served on respondent and that a copy of said notice with its accompanying affidavit of service is attached to the petition. The petition further states that respondent holds over and continues in possession of the subject premises without permission of the landlord after the expiration of the agreed upon tenancy term. The petition further states that the premises are not regulated and that prior to the expiration of the term the respondent was served with a notice that the landlord had elected to terminate the tenancy and that unless the tenant removed from said premises on the day set forth in the Thirty Day Notice of Termination the landlord would commence summary proceedings to remove tenant from the premises.
A copy of the notice to terminate that was served on respondent by petitioner is attached to the petition. The notice to terminate clearly states that the landlord elected to terminate the tenancy on December 1, 2015 and informed respondent that if she failed to remove herself from the premises on December 1, 2015 that the landlord would commence appropriate proceedings to recover possession of said premises.
On January 6, 2016 the evidence presented by petitioner, through the testimony of Nahshon Halevi, a City of Mount Vernon Deputy Marshal, established that respondent was served with the Thirty-Day Notice to Terminate by leaving said notice with a person of suitable age and discretion, that being a young male between the ages of 14-20, on October 30, 2015 at 3:00 pm at 150 Archer Avenue, 1st Floor, Mount Vernon, New York. Although petitioner's affidavit of service further indicates that additional mailings were made on October 30, 2015 as well, petitioner's witness was unable to produce proof of said additional mailings at the hearing. Respondent also testified at the hearing. Significantly, although respondent testified that she never received a copy of the Thirty-Day Notice to Terminate either by regular or certified mail, respondent did not testify that she had never received a copy of the Thirty-Day Notice to Terminate.
Pursuant to RPL § 232-b, a monthly tenancy located outside the city of New York "may be terminated by the landlord or the tenant upon his notifying the other at least one month before the expiration of the term of his election to terminate." All that is required is a timely, definite and unequivocal notice, which can be either oral or written, served personally or otherwise. Smith v Scott, 190 Misc. 600 (City Ct. New Rochelle 1948). There are no statutorily prescribed steps for giving notification of an election to terminate a month-to-month tenancy outside New York City. In order for a petitioning landlord to prevail on the merits all that is required is that the notice be served in a manner calculated to give actual notice. Angell v. McInerney, 45 N.Y.S.2d 93 (NY Mun. Ct. 1943); Zagari v. Gleason, 2002 NY Slip Op 50402U (Nassau Cty. Dist. Ct. 2002). Moreover, not even a calculated denial of notification defeats the right to recover possession, rather the petitioning landlord must offer logically probative evidence establishing that he actually timely made known to the tenant the fact that the election to terminate has been made. Zagari v. Gleason, 2002 NY Slip Op 50402U (Nassau Cty. Dist. Ct. 2002).
The Court finds that petitioner's service of the Thirty Day Notice of Termination was proper. In the case at bar, petitioner's witness established that he served the Thirty Day Notice to Terminate on a person of suitable age and discretion at the subject premises. Respondent has never denied receiving the Thirty Day Notice to Terminate either in her answer or during her testimony at the hearing. The Court finds that petitioner has sufficiently established that he properly provided notice to respondent that he elected to terminate her tenancy.
Based upon the foregoing, the Court finds that the petitioner properly served the Thirty Day Notice to Terminate.
All funds being held in escrow for the benefit of the landlord are to be released to the landlord.
The parties are directed to appear for a trial on the matter on April 27, 2016 at 2:00 p.m.
This constitutes the Decision and Order of this Court. Dated:April 14, 2016 Mount Vernon, New York HON. ADAM SEIDEN Associate City Judge of Mount Vernon