Opinion
No. LT–005388–12.
2013-02-11
OAK PLAZA LLC, Petitioner(s) v. OAK STREET CHECK CASHING, INC., Respondent(s).
Kenneth B. Mock, Esq., Uniondale, for Petitioner. Stephen G. Reddan, Esq., Valley Stream, for Respondent.
Kenneth B. Mock, Esq., Uniondale, for Petitioner. Stephen G. Reddan, Esq., Valley Stream, for Respondent.
Scott Fairgrieve, J.
The following named papers numbered 1 to 2
submitted on this Motion
on January 4, 2013
papers numbered
Notice of Motion and Supporting Documents1Order to Show Cause and Supporting Documents
Opposition to Motion2
Reply Papers to Motion
In this commercial non-payment summary proceeding, the respondent, Oak Street Check Cashing, moves for an order dismissing the petition on the basis that this Court lacks jurisdiction to determine this summary proceeding. The petitioner opposes the respondent's motion.
In support of its motion, the respondent argues that dismissal is warranted upon the grounds of a lack of subject matter jurisdiction as well as a lack of personal jurisdiction. Specifically, the respondent, by way of affidavit of Joann Madonia, the president of the respondent corporation, contends that the contents and service of the predicate notice required pursuant to ¶¶ 17 and 54 of the parties' lease is defective; that the petitioner failed to comply with RPAPL § 711(2), by making an oral demand for rent; that the Notice of Petition and Petition were improperly served; and that the respondent has certain defenses, i.e., offsets for repairs, which she alleges were the landlord's responsibility.
In opposition, the petitioner argues that the summary proceeding was properly commenced. Specifically, the petitioner claims that the content and service of the predicate notice was proper. In addition, with regard to the respondent's allegations that it has certain defenses for offsets due to repairs made to the leased premises, the petitioner contends that such allegations may not be maintained in the instant summary proceeding, as indicated in ¶ 51 of the lease rider. Rather, the petitioner argues that such claims must be made in a plenary action. Moreover, the petitioner further claims that if such offsets by the respondent are considered by this Court, such defenses should have res judicata effect, as they were raised in a prior summary proceeding before this Court, wherein a stipulation of settlement was signed.
A landlord is required to provide a tenant with a predicate notice prior to the commencement of a non-payment summary proceeding. Pursuant to RPAPL § 711(2), the notice must be made either by oral or a three (3) day written demand, unless otherwise required pursuant to the terms of the parties' lease. The service of a written demand must be served upon the tenant in the same manner as the Notice of Petition and Petition, pursuant to RPAPL § 735, unless otherwise agreed in the lease.
Initially, the Court notes that the respondent's reliance on ¶ 17 of the lease is misplaced and inapplicable to the instant proceeding. Paragraph 17, entitled “Default”, subsection (1) of the lease reads, in pertinent part: “If Tenant defaults in fulfilling any of the covenants of this lease other than the covenants for the payment of rent or additional rent ...” [emphasis added], the landlord is required to provide a five (5) day rent demand along with an additional three (3) day rent demand. Thus, the commencement of a non-payment summary proceeding is not subject to this section of the lease. In any event, it is noted that the petitioner elected to provide a five (5) day written demand for rent as required pursuant to ¶ 17 of the lease, instead of a three (3) day rent demand, thus satisfying the additional notice requirement of ¶ 17 of the lease, as well as RPAPL § 711(2).
The respondent's allegation that the predicate notice is defective due to the failure of the petitioner to fix a date certain for the expiration of the five (5) day demand is also without merit. Upon this Court's review of the five (5) day rent demand, the Court finds that it is sufficient as it alleges a date certain for termination from the receipt of the notice.
The respondent also argues that the predicate notice was improperly served. Pursuant to ¶ 54 of the parties' written lease agreement, it requires that any notices shall be made in writing and “[u]nless otherwise requires (sic) by such laws or regulation, such notice shall be given, and shall be deemed to have been served when (l) deposited by registered or certified mail R.R.R .... to tenant at the demised premises.” The Court finds that this lease provision explicitly defers to any statutory requirement regarding service of notices in a summary proceeding.
RPAPL § 735 provides that service may be made upon a corporation personally, by service of suitable age and discretion, or by “nail and mail.” The additional mailing requirements for suitable age and discretion service, or by “nail and mail” service are set forth in RPAPL § 735(1). However, the statute is silent as to how a corporation may be personally served, therefore, the Court must defer to the CPLR and specifically, CPLR § 311 ( Service Station Realty Corp. v. Universal Fuel Service, 7 Misc.3d 1021[A] [Nassau Dist Ct 2005]; see also Landlord and Tenant Practice in New York, Daniel Finkelstein and Lucas A. Ferrara, § 14:167).
CPLR § 311(a)(1) states in relevant part:
Personal service upon a corporation or governmental subdivision shall be made by delivering the summons as follows:
(1) upon any domestic or foreign corporation, to an officer, director, managing or general agent, or cashier or assistant cashier or to any other agent authorized by appointment or by law to receive service....
Here, the affidavit of service indicates that the predicate notice was served by personal delivery upon “Pete”, a managing agent of the respondent at the demised premises. In addition, a copy was mailed with a confirmed delivery at 621 Chestnut Street, Garden City, New York. The respondent argues that the mailing of the predicate notice to an address other than the demised premises, as required by the lease, renders the predicate notice defective. The petitioner argues that the service upon the managing agent “Pete”, provided the respondent with sufficient service of the predicate notice. Thus, it appears that the petitioner alleges compliance with RPAPL § 735.
This Court finds that service upon “Pete”, the managing agent of the respondent corporation, constituted personal service upon the corporation pursuant to RPAPL § 735 and thus service of the predicate notice was sufficient ( see RPS Greenvale Realty, LLC v. Rosa's of Roslyn, Inc., 2008 N.Y. Slip Op 50442U537 [Nassau County Sup Court 2008]; Greenwich LLC v. Chista, Inc., 2008 N.Y. Slip Op 50989U [Civ Ct, N.Y. County 2008]; see also McDee Family LP v. Royal T's Gymnastics, Inc., 15 Misc.3d 1145[A] [Nassau Dist Ct 2007] ).
Moreover, the respondent's argument alleging the improper service of the Notice of Petition and the Petition is also without merit. The affidavit of service indicates that the Notice of Petition and Petition were delivered personally to Nick Madonia, a managing agent of the respondent, Oak Street Check Cashing, Inc. Here, as discussed above, service upon a managing agent of the respondent corporation, constitutes personal service upon the corporation pursuant to RPAPL § 735 ( see RPS Greenvale Realty, LLC v. Rosa's of Roslyn, Inc., 2008 N.Y. Slip Op 50442U537; Greenwich LLC v. Chista, Inc., 2008 N.Y. Slip Op 50989U; see also McDee Family LP v. Royal T's Gymnastics, Inc., 15 Misc.3d 1145[A] ). Therefore, no additional mailing is required and the Court finds the service of the Notice of Petition and Petition sufficient.
The respondent's remaining argument regarding any offsets, is also denied. The respondent seeks offsets allegedly due as a result of repairs it made to the leased premises. However, pursuant to ¶ 51 of the parties' lease rider, the tenant “waives the right to interpose a counterclaim of whatever nature or description in any summary proceeding instituted by landlord for unpaid base rent, additional rent or other sums or charges payable by tenant under this lease.” To the extent that the respondent is seeking any offsets, any such claim is a counterclaim and therefore, must be brought in a separate plenary action, as required by the parties' lease ( see Titleserv v. Zenobio, 210 A.D.2d 310 [2d Dept 1994]; Bomze v. Jaybee Photo Suppliers, 117 Misc.2d 957 [App Term, 1st Dept 1980]; Vornado Broadway Mall, LLC v. City Source NY, Inc., 29 Misc.3d 1211A [Nassau District Court 2010] ).
Accordingly, the respondent's motion is denied in its entirety.
So Ordered: