Opinion
No. LT–005716–11.
2013-02-25
PSRS REALTY, Petitioner(s), v. DMITRIY PROSOLOV, Arihay Kaikov and Khrystyna Ovcharenko, “John Doe” and “Jane Doe,”, Respondents.
Gregory S. Bougopoulos, Esq., Novick, Edelstein, Lubell, Reisman, Wasserman & Leventhal, P.C., Yonkers, for Petitioner. Dustin Bowman, Esq., Steven Zalewski & Associates, P.C., Kew Gardens, for Respondent.
Gregory S. Bougopoulos, Esq., Novick, Edelstein, Lubell, Reisman, Wasserman & Leventhal, P.C., Yonkers, for Petitioner. Dustin Bowman, Esq., Steven Zalewski & Associates, P.C., Kew Gardens, for Respondent.
SCOTT FAIRGRIEVE, J.
Trial Decision
Petitioner PSRS Realty commenced this holdover proceeding to evict respondent Dmitriy Prosolov and the respondents/undertenants Arihay Kaikov and Khrystyna Ovcharenko from the premises located at 382 I.U. Willets Road, Roslyn Heights, New York, because the respondent didn't take possession but illegally assigned or sublet the premises in violation of paragraph 11 of the lease.
In paragraph 9 of the petition, dated September 8, 2011, petitioner alleges that:
The grounds of this proceeding are as follows: Tenant's term has been terminated pursuant to the notices attached hereto and made a part hereof by reason of the grounds asserted therein.
The five (5) day notice to cure referred to in paragraph 9 of the petition provides the following grounds to evict:
FIVE DAY NOTICE TO CURE
TO:DMITRIY PROSOLOV, TENANT(S)
PREMISES:382 I.U. WILLETS ROAD
ENTIRE HOUSE
ROSLYN HEIGHTS, NEW YORK 11577
DATE:AUGUST 10, 2011
PLEASE TAKE NOTICE, that your tenancy in the premises referenced above, located at 382 I.U. WILLETS ROAD, ROSLYN HEIGHTS, NEW YORK 11577, shall be terminated pursuant to article 15 of the written lease dated March 3, 2011, such lease agreement between Landlord and you, unless you correct the following conditions five (5) days from the date of receipt of this notice pursuant to Article 15 A(2) of the lease. Unless you cure all said defects listed below from said premises on or before September 5, 2011 the day on which your tenancy is terminated, the landlord will treat said failure to cure and exercise its rights under said lease to terminate pursuant to article 15b as a termination and or surrender of your lease term and should you remain in the premises at such time, the Landlord shall commence summary proceeding to remove you from said premises.
You must correct the following conditions being violated immediately as referenced in Article 1, 11, & 35, of the lease:
1.You have not taken occupancy and have either assigned or illegally subleased the premises to persons believed to be “ARIHAY KAIKOV, KHRYSTYNA OVCHARENKO.”
If the fore going conditions are not cured within FIVE (5) days of this notice, the Landlord shall take all steps to terminate your tenancy and commence a summary proceeding to evict you from the above premises.
PSRS REALTY, LANDLORD/OWNER
By: /s/ Ramesh Sarva
RAMESH SARVA, PRESIDENT
Paragraph 15 of the lease provides that a 5 day notice to cure and 3 day notice to terminate are needed to end respondent's lease:
15.Tenant's defaults and Landlord's remedies
A.Landlord may give 5 days written notice to Tenant to correct any of the following defaults:
2.Improper assignment of the Lease, improper subletting all or part of the House.
B.If Tenant fails to correct the defaults in section A within the 5 days, Landlord may cancel the Lease by giving Tenant a written 3–day notice stating the date the Term will end. On that date the Term and Tenant's rights in this Lease automatically end and Tenant must leave the House and give Landlord the keys. Tenant continues to be responsible for rent, expenses, damages and losses.
Respondent Dmitriy Prosolov denied in his verified answer, dated November 15, 2011, the allegations of paragraph 9, that petitioner properly terminated the lease. The answer did not raise as an affirmative defense the failure of petitioner to serve the 3 day notice to terminate.
At the close of petitioner's case, respondent made an oral motion to dismiss the petitioner's notice of petition and petition due to petitioner's failure to serve a 3 day notice of termination. Petitioner admitted that the 3 day notice of termination was not served. Petitioner argued that respondent waived petitioner's failure to serve the 3 day notice of termination because this issue was not raised as an affirmative defense in the answer. Respondent contended the issue was properly raised by the denial of paragraph 9 of the petition which alleges proper termination of the lease by petitioner.
This court rules that respondent properly raised the issue by the denial in its answer and was not required to raise this argument as an affirmative defense. The answer may raise as an issue the failure of petitioner to properly terminate the lease by a denial.
In New York Practice, Fourth Edition, Section 223, Professor David D. Siegel writes:
Under a denial, a defendant can disprove anything the plaintiff is required to prove. But a number of matters are not the plaintiff's burden to prove as part of the cause of action and are thus the defendant's burden to broach in the answer and sustain at the trial, i.e., to plead and prove. These are the “affirmative defenses”; they are defined, and the main ones listed, in CPLR 3018(b).
See Landlord & Tenant Practice in New York, Finkelstein and Ferrera, Section 15:365 which states:
The respondent may state a “general denial” to all of the Petition's allegations. For written Answers, in order to narrow the scope of issues to be resolved at trial, it is permissible to “admit” or “deny” each of the Petition's numbered paragraphs. A denial may be predicated on personal knowledge or on the basis that the respondent lacks sufficient knowledge or information to form a belief as to the allegation's truth or falsity. Allegations which are not denied by the Answer are deemed admitted.
The petitioner is required to prove service of the 3 day notice of termination. Respondent properly raised the issue of lack of service of the 3 day notice of termination by the denial in the answer.
In Rasch's Landlord & Tenant, Including Summary Proceedings, Fourth Edition, the Hon. Robert F. Dolan writes in Section 43:11:
In making provision for an answer, much of the detail as to its contents has been omitted from the Real Property Actions and Proceedings Law, since this matter is covered by the general rules of pleading. Accordingly, and as is the general rule of pleading, a respondent may deny those statements in the petition known or believed by him to be untrue. He may also specify those statements as to the truth of which he lacks knowledge or information sufficient to form a belief, which shall have the effect of a denial. All other statements of a pleading are deemed admitted, except that where no responsive pleading is permitted they are deemed denied or avoided.
Based upon the foregoing, petitioner was required to prove compliance with the lease provisions regarding notices to terminate the lease; Respondent properly raised this issue as a denial in his answer and was not required to raise this issue as an affirmative defense.
Petitioner admitted on the record that he failed to serve the 3 day notice of termination as required by the lease. Failure to comply with the contract requirements of the lease results in this proceeding being dismissed because the lease was not effectively terminated. See Landlord & Tenant Practice in New York, Finkelstein and Ferrera, Section 15:141, wherein the following appears:
Since the parties' lease will usually list the grounds on which the lease may be terminated and the manner of its termination, the predicate should cite the specific contractual obligation or prohibition alleged to have been violated. (FN1). Absent compliance with the agreement's notice requirements the proceeding is likely to suffer dismissal. (FN2)
* * *
(FN1)Chinatown Apartments, Inc. v. Chu Cho Lam, 51 N.Y.2d 786, 788, 433 N.Y.S.2d 86, 88, 412 N.E.2d 1312, 1313 (1980); Fairview Co. v. Idowu, 148 Misc.2d 17, 559 N.Y.S.2d 925 (City Civ. Ct 1990).
(FN2)Terrace Gardens Plaza, Inc. v. Maya, NYLJ, 4/16/92, p. 26, col. 6 (App Term, 2d and 11th Jud Dists). (“In this holdover proceeding, landlord served a notice to cure ... but failed to serve a notice of termination required by the lease. Under the circumstances, the tenancy was not terminated and the proceeding must be dismissed.”); Dentree Associates v. Frankie's Stores, Inc ., NYLJ, 6/6/88, p. 28, col. 1 (App Term, 2d and 11th Jud Dists). (“Landlord failed to serve a five-day notice of intention to terminate the lease as required by ... the lease. In view of the requirement of strict compliance with lease provisions regarding notices of termination ... the notices served by the landlord were ineffective to terminate the lease”).
In 2215–75 Cruger Apartments, Inc. v. Stovel, 196 Misc.2d 346, 769 N.Y.S.2d 347 (App Term, 1st Dep't 2003), the Court held that the failure of the landlord to serve the requisite 10 day notice to cure failed to terminate the lease which was fatal to the summary proceedings.
Likewise, in Karagiannis v. Nasr, 17 Misc.3d 133(A), 851 N.Y.S.2d 70 (App Term, 1st Dep't, 2d & 11th Jud Dists), the Court dismissed the petition because the petitioner failed to serve the requisite notice:
Since the landlord failed to serve the requisite notice, the lease was not properly terminated and remains in effects ( see Grenadeir Parking Corp. v. Landmark Assocs., 283 A.D.2d 379, 380 [2001];2215–75 Cruger Apts. v. Stovel, 196 Misc.2d 346 [App Term, 1st Dept 2003] ). Accordingly, the court below properly dismissed the petition.
Thus, this court properly dismissed the petitioner's case at trial because the 3 day notice to terminate was not accomplished as required by the lease. The respondent properly raised this issue in his answer by the denial and was not required to raise this matter as an affirmative defense.
So Ordered: