Opinion
No. L & T 55202/10.
2010-07-1
BHAP HOUSING DEVELOPMENT FUND CO., Petitioner–Landlord v. Derrick SELBY, Respondent–Tenant. “John Doe” and “Jane Doe”, Respondents–Undertenants.
Jamila Wildeman, Esq., The Legal Aid Society, Brooklyn. James C. Mantia, Esq., Sperber Denenberg & Kahan, P.C., New York.
Jamila Wildeman, Esq., The Legal Aid Society, Brooklyn. James C. Mantia, Esq., Sperber Denenberg & Kahan, P.C., New York.
ANTHONY J. FIORELLA, J.
Respondent moves to dismiss this petition pursuant to CPLR R.3211 (a)(7) on the grounds that petitioner has failed to provide legally sufficient notice of termination by failing to add five days to the termination period, and that petitioner has failed to state a cause of action in that the predicate notices allegedly served on respondent are insufficient as a matter of law to serve an actual predicate to this eviction proceeding; and in the event the relief requested above is denied, an order extending respondent's time to serve an answer until ten days after the service of notice of entry of the order. The motion to dismiss is denied and an order to extend the respondent's time to serve an answer until ten days after the service of notice of entry of the order is granted.
ESSENTIAL FACTS
The petitioner commenced this holdover proceeding seeking recovery of the premises located at 243 Kingston Avenue, Apt. 1–I, Brooklyn, New York 11213, based on the respondent's material non-compliance with the HUD lease in violation of paragraph 8, and the expiration of the lease agreement on January 31, 2010. The petitioner served a 30–day notice of termination on or about December 29, 2009, followed by a Notice of Petition and Petition. On or about April 27, 2010, the respondent filed an Order to Show Cause with counterclaims. The respondent alleged failure to provide legally sufficient notice of termination and failure to state a cause of action. In his counterclaims, the respondent demanded dismissal or in the alternative, an order extending respondent's time to serve an answer until ten days after the service of the notice of entry of the order.
Petitioner opposed respondent's allegations stating that there are no procedural defects with the notice of termination and the notice of termination is sufficiently specific.
NOTICE OF TERMINATION
The respondent objects to the notice of termination dated December 22, 2009 as defective since petitioner failed to add five days to the termination period as required by ATM One, LLC v. Landaverde, 2 NY3d 472 (2004). The petitioner's 30–day notice of termination requests that the respondent vacate the premises on or before January 31, 2010 or the landlord will commence a summary proceeding. This 30–day notice of termination was served by substituted service by serving a copy of the notice personally on Mardochee Dubourg who is of suitable age and discretion, on December 29, 2009, and by mail on December 30, 2009 as required by law in 24 C.F.R. § 247.4(b).
Respondent's reliance on ATM One, LLC v. Landaverde, 2 NY3d 472 (2004) is misplaced as it has no application in the instant proceeding. In Landaverde, the Appellate Division, Second Department properly dismissed the petition borrowing a concept from N.Y.C.P.L.R 2103 because the petitioner failed to add five days to the prescribed period when service was “by mail”. In the instant case, the petitioner has not served the notice of termination only “by mail”, but also has served such notice personally. The Landaverde additional five days rule was designed in order to ensure that tenants are not disadvantaged by the owner's choice of service method. The rule allows the tenant the additional time to make sure that he received appropriate notification via mail. However here, there is no disadvantage to the respondent since the notice was served also in person on a suitable age person on December 29, 2010. The law in 24 C.F.R. § 247.4(c) explains that when the termination notice is based on material noncompliance with material failure to carry out obligations, the time of service shall be in accord with the rental agreement and state law. In 135 PPW Owners LLC v. Schwartz, 7 Misc.3d 1016 (2005), the court refused to follow the Landaverde rule and held that Landaverde rule is inapplicable to proceedings pursuant RPAPL § 713 and § 735. The Court cited KSLM Columbus Apartments v. Bonnemere, NYJL, 1/5/05, p. 19, col 1, where the Court also declined to use the Landaverde rule to a Golub notice by explaining that any action taken by the tenant immediate or otherwise will not negate the landlord's intent not to renew the lease. In a situation where a landlord serves a notice of termination, the outcome will be the same, regardless on whether the service of the notice was short if the five days is added to the mailing. In Skyview Holdings, LLC v.. Cunningham, 13 Misc.3d 103, (App Term 2006) the Court “decline tenant's invitation to adopt a blanket rule requiring landlords to add five days to statutory notices periods upon the mailing of any and all notices required by the rent regulations”. Id. At 104. See also 21 West 58th Street Corp. v. Foster, 44 AD3d 410 (2007) and Zunce v. Rodriguez, 22 Misc.3d 265 (2008).
Furthermore, in Woodmere Professional Building Corp. v. Lesser, 10/31/2001 NYLJ 22, (col.5) the District Court of Nassau Court rejected respondent contentions that he was entitled to an additional five days notice because the notice of termination was sent by mail. The Court cited Lusta Realty Corp. v. Kew Gardens Owners Corp., 1/27/93, NYLJ col.6 (Sup.Ct., Queens Co.), where it was held that CPLR 2103 required an additional five days to be added to any period in a civil action which is measured from the service of the paper, when that service is made by mail and that “CPLR 2103 applies only to proceedings in civil actions” (Fiedelman v. N.Y.S .Dept. of Health, 58 N.Y.2d 80) and “has no general application to notices given pursuant to private contracts.” 1/27/93, NYLJ col.6.
Since the five days additional period is inapplicable to termination notices and the notice of termination in the case at bar was served properly, the petitioner acted according to the statute. Therefore, respondent's motion to dismiss is denied.
SPECIFICITY OF NOTICE OF TERMINATION
The respondent alleges that the petitioner's notice of termination is not sufficiently specific to state a cause of action, alleging that the notice consists in only factual allegations that do not amount to a breach of paragraph eight provision of the lease. The respondent argues that there is no factual allegation that the respondent engaged in activity that threatened a resident or an employee who resides in the premises claiming that Ms. Hodge is not a resident of petitioner's building. Respondent goes further to argue that the termination notice is insufficient as a matter of law because it failed to set forth elements for specific criminal activity alleged and because it fatally failed to cite specific lease provisions. However, the termination notice shows that paragraph eight of the lease agreement provides:
“... (i) The LANDLORD may terminate this Agreement for the following reasons:..(4) criminal activity by a tenant, any member of the TENANT'S household, a guest or another person under the TENANT'S control:..a. that threatens the health, safety, or right to peaceful enjoyment of the premises by other residents (including property management staff residing on the premises); or ....b. that threatens the health, safety or right to peaceful enjoyment of their residences by persons residing in the immediate vicinity of the premises”
Also petitioner's notice is sufficiently specific for it describes in detail the respondent's conduct on November 2, 2009 which threatens the safety of Ms. Hodge, who is an agent of petitioner and who works at the same premises. It is understandable that under the circumstances of this case, Ms. Hodge would feel unsafe and would request an order of protection against respondent. The assumption that a person who has to work on the same premises under the aforementioned circumstances would not require any protection and guarantee for her safety by alleging that she does not reside in the premises is not acceptable. If it was, this would mean that respondent's offensive conduct against landlord or landlord's agents will be permissible as long as he is not harassing residents of the building. In addition, it is undisputed that on the same day of the incident, respondent also caused public disturbance when he yelled and threatened other persons who are residing at the premises. In Fairview Co. v. Idowu, 148 Misc.2d 17 (1990), the Court explained 24 CFR 247.4(a)(2) requires a notice that “states the reasons for the landlord's action with enough specificity as to enable the tenant to prepare a defense” Id. At 22. Furthermore, a material noncompliance is defined in 24 CFR 247.3(c) as “one or more substantial violations of the rental agreement or a repeated minor violations of the rental agreement that disrupt the livability of the premises adversely affecting the health or safety of any person or the right of any tenant to the quiet enjoyment of the leased premises.”
This court disagrees with the respondent in that the allegations described in the notice of termination do not raise to breach of the lease. Therefore, respondent's contention that the notice of termination is insufficient on its face and that it requires dismissal of this action is unavailing.
CONCLUSION
Based on the foregoing discussion, the Court finds that the petitioner has served the respondent with a sufficient notice of termination. Respondent's Order to Show Cause is denied. Respondent is to serve his answer by July 12th, 2010. The parties are directed to appear on July 26, 2010 at 9:30 a.m. in Part E, Room 509 and must be ready for trial.
This constitutes the decision and order of the Court.