Opinion
Index No. LT 303730/21
10-22-2021
808 Columbus Commercial Owner LLC, Petitioner-Landlord v. Quik Park 808 Garage LLC 808 Columbus Avenue, The Garage Space New York, New York 10025, Respondent-Tenant "XYZ CORP" Respondent-Undertenant. Index No. L & T 303730/21
CULLEN & ASSOCIATES LLP Attorneys for Petitioner Kevin D. Cullen, Esq. NEWMAN FERRARA LLP Attorneys for Respondent Jared I. Kassenoff, Esq.
Unpublished Opinion
CULLEN & ASSOCIATES LLP Attorneys for Petitioner Kevin D. Cullen, Esq.
NEWMAN FERRARA LLP Attorneys for Respondent Jared I. Kassenoff, Esq.
Sabrina B. Kraus, J.
BACKGROUND
Petitioner commenced this summary holdover proceeding based on the allegation that respondent, the tenant of record for the garage space located at 808 Columbus Avenue, New York, New York 10025 (Subject Premises) had breached its lease agreement by using a portion of the Subject Premises for activities not permitted under the lease, by failing to maintain the exhaust system in the Subject Premises, and by failing to repair damage done to the Subject Premises by respondent.
PROCEDURAL HISTORY
Petitioner issued a Notice of Default dated July 13, 2020. The Notice specified four alleged defaults under the parties lease agreement, including: that a portion of the Subject Premises was being used to repair, build and store various multiple bicycles; and that a portion of the Subject Premises was being used to wash and clean cars; and that respondent had failed to maintain the exhaust system in the Subject Premises in operating condition; and that respondent had failed to repair damage to the waterproof membrane of the floor slab in the Subject Premises which damage was caused by the washing of the cars.
Petitioner issued a Ten Day Notice of Termination dated March 9, 2021, terminating respondent's tenancy effective April 2, 2021, based on the allegation that respondent had failed to cure the defaults by August 31, 2020. The Petition was filed on June 4, 2021, and the affidavit of service for the notice of petition and petition were filed on June 17, 2021.
On July 27, 2021, respondent appeared by counsel.
PRIOR PENDING RELATED LITIGATION
There is a pending action between the parties in Supreme Court New York County before Judge Paul Goetz., under Index Number 159396/19 (The Supreme Court Action). That action originated as a Yellowstone action, based on an earlier notice of default issued by petitioner. This court takes judicial notice of said action and the documents efiled therein.
There has been significant motion practice in the Supreme Court action, which has now been consolidated with other pending and related Supreme Court actions and in which petitioner has also submitted a counterclaim for ejectment. In the Supreme Court Action, the court originally denied the request for Yellowstone relief, however said relief was later granted by the Appellate Division First Department.
That action is currently pending and was last scheduled for a status conference on September 23, 2021.
THE PENDING MOTION
On August 26, 2021, respondent moved for an order dismissing this proceeding based on: allegations that the predicate notice was defective and issued in violation of the pending Yellowstone injunction in the Supreme Court Action; and lack of personal jurisdiction; and seeking sanctions and related relief.
On October 19, 2021, the parties appeared before the court (Dominguez, J), the motion was fully briefed, and the court marked the motion submitted. On October 20, 2021, Judge Dominguez referred the motion to this court for determination.
For the reasons set forth below, the motion is denied.
DISCUSSION
The Defect in the Notice of Default Does Not Require Dismissal of this Proceeding
One of the alleged lease violations in the Notice of Default issued by petitioner in this proceeding is that respondent is using a portion of the Subject Premises to wash and clean cars, and that this use violates paragraph 4A of the parties' lease agreement.
This same alleged default was raised in a prior Notice of Default which led to the Supreme Court Action. Respondent was granted a Yellowstone Injunction in that action by the Appellate Division. Therefore, that default is not properly included in the Notice in this proceeding.
However, this defect does not require dismissal of this proceeding, and petitioner may proceed on the other three defaults alleged in the notice herein. The purpose of the Notice of Default, which is essentially a notice to cure, is to specifically apprise the tenant of claimed defaults in its obligations under the lease and of the termination of the lease if the defaults are not cured within a specific period of time (Filmtrucks, Inc. v Express Indus. & Term Corp. 127 A.D.2d 509, 510).
As held by the Appellate Term, First Department:
Where, as here, a predicate notice alleges factually specific defaults, the insufficiency of one ground does not invalidate the entire notice, as the deficient allegation is severable from the remaining allegations (see Lambert Houses Redevelopment Co. v Adam & Peck Org., 169 Misc.2d 667 [App Term, 1st Dept 1996]; see also CRS Realty Assoc. Inc. v 235 Tenth Ave. Car Wash Inc., 43 Misc.3d 1226[A], 2014 NY Slip Op 50790 [U] [Civ Ct, NY County 2014]).751 Union St., LLC v. Charles, 56 Misc.3d 141 (A) (NY App. Term. 2017).
A petition in a summary proceeding is no different than a pleading in any other type of civil case" (669 Jackson v New York City Hous. Auth., 88 Misc.2d 121, 122 [App Term, 1st Dept]). The assertion of separate theories or causes of action is authorized (CPLR 3014), and the insufficiency of one alternative does not affect the sufficiency of the remainder of the pleading (3 Weinstein-Korn-Miller, NY Civ Prac ¶ 3014.13). Thus, the allegation in the termination notice as to tenants' default in rent is severable from the remaining allegations based upon breach of the lease (310 E. 4th St. Hous. Dev. Fund Corp. v Blackmon, NYLJ, Jan. 30, 1996, at 25, col 2 [App Term, 1st Dept]).Lambert Houses Redevelopment Co. v. Adam & Peck Org., Inc., 169 Misc.2d 667, 668-69 (App. Term 1996).
Thus, while the allegation regarding the washing of cars in the Subject Premises is not properly asserted in this proceeding, petitioner may still proceed on the other three alleged defaults which are not subject to the Yellowstone Injunction in the Supreme Court Action, and petitioner's motion to dismiss the proceeding on this basis is denied.
The Fact that the Notice was signed by Jeffrey Davis, as authorized Agent for Petitioner Does not Make the Notice Defective
Respondent relies on Siegel v Kentucky Fried Chicken of Long Island, Inc. 108 A.D.2d 218 as authority for its argument that a notice of termination, not signed by the landlord or a person identified in the lease, is defective if not accompanied by proof of the agent's authority.
However, the Siegel case has long been limited to the facts specific to that proceeding and the specific language in that lease. As held by the Appellate Division, First Department:
There is no written lease between the parties requiring that the demand be signed by the landlord, as in Siegel v Kentucky Fried Chicken (supra). RPAPL 711(2) does not require that the demand be signed by the landlord. Therefore, the three-day demand notice in the case at bar was not rendered legally insufficient because it was signed by the landlord's attorney.Kwong v Eng 183 A.D.2d 558, 560 (see also QPII -143-145 Sanford Avenue LLC v Spinner 34 Misc.3d 14 holding Siegel decision rested on narrow grounds based on the factual peculiarities of the lease). Similarly, there is no lease provision in this case requiring that the notice be signed by the landlord.
Additionally, it is clear by the exhibits, including email correspondence, submitted by petitioner in this proceeding, as well as the prior pending Supreme Court Action, where Mr. Davis is the subject of pending motions that Mr. Davis was no stranger to respondent.
Based on the foregoing, the motion to dismiss based on the fact that Mr. Davis signed the notice is denied.
Petitioner's motion to dismiss pursuant to CPLR 3211(a)(4) is denied
Pursuant to CPLR § 3211(a)(4) a motion to dismiss lies where there is another action pending between the same parties for the same cause of action. The statute further provides that "... the court need not dismiss upon this ground but may make such order as justice requires NY C.P.L.R. 3211 (McKinney)]."
As noted above there is a prior action pending between the parties in Supreme Court. However, other than the allegation regarding washing the cars, the defaults alleged in this proceeding are different. Therefore dismissal is not warranted. Nor is the court inclined to grant the stay sought by respondent. There is no reason for the court to stay this proceeding based on the Supreme Court action. This is a summary proceeding which presumably will be much less involved, and more quickly adjudicated, then the Supreme Court action which appears to grow more complicated by the month.
Based on the foregoing respondent's motion for relief pursuant to CPLR §3211(a)(4) is denied.
The Balance of the Relief Sought by Respondent is Denied
Finally, respondent seeks dismissal of this proceeding based on the allegation made upon information and belief that petitioner was aware that tenant moved the place of its principal office, and failed send an additional copy of the predicate notices and the petition to said address. Respondent cites neither a statute nor a provision of the lease agreement which would require such service.
Service of the notices is governed by the lease agreement between the parties, and it is not contested that service was made in accordance with the parties' lease agreement.
Service of the petition is governed by RPAPL §735(1)(b) which only requires service at an offsite corporate office if petitioner has "written information" of said address. There is no allegation in the moving papers as to any such written information.
Based on the foregoing, respondent's motion to dismiss based on lack of personal jurisdiction is denied.
Finally, the court does not find that either party's conduct in the context of this proceeding warrants sanctions.
WHEREFORE it is hereby:
ORDERED that respondent's motion is denied in its entirety; and it is further
ORDERED that respondent shall serve and file an answer on or before November 1, 2021; and it is further
ORDERED that the proceeding is restored to the calendar for all purposes on November 17th at 11 am.
This constitutes the decision and order of the court.