Opinion
No. LT–001248–13.
2013-05-23
CLK/HP ONE OLD COUNTRY ROAD LLC, as administrative owner of HLP Old Country TIC LLC and CLK/HP One Old Country LLC, Petitioner(s) v. SETTLEMENT SYSTEMS, INC., “John Doe” and “Jane Doe,” Respondent(s).
Sahn, Ward, Coschignano & Baker, PLLC, Uniondale, Attorneys for Petitioner. Michael M. Premisler, Esq., Carle Place, Attorneys for Respondent.
Sahn, Ward, Coschignano & Baker, PLLC, Uniondale, Attorneys for Petitioner. Michael M. Premisler, Esq., Carle Place, Attorneys for Respondent.
SCOTT FAIRGRIEVE, J.
The following named papers numbered 1 to 4 submitted on this Motion on May 10, 2013
+-----------------------------------------------------------------------------+ ¦papers ¦numbered¦ +--------------------------------------------------------------------+--------¦ ¦Notice of Motion and Supporting Documents1Memo of Law in Support of ¦2 ¦ ¦Motion ¦ ¦ +--------------------------------------------------------------------+--------¦ ¦Opposition to Motion ¦3 ¦ +--------------------------------------------------------------------+--------¦ ¦Reply Memo of Law to Motion ¦4 ¦ +-----------------------------------------------------------------------------+
The petitioner commenced this Landlord/Tenant non-payment proceeding on March 20, 2013 by the service of a Notice of Petition and Petition to recover possession of the premises located at One Old Country Road, Carle Place, New York, 11514. The petitioner seeks a final judgment of possession, warrant of eviction and money judgment in the sum of $23,624.61, an award of attorney's fees pursuant to the written lease, plus costs and disbursements of this action.
The respondent moves for an order pursuant to CPLR 3211(a)(2) and (7) dismissing this proceeding upon the grounds that the three (3) day demand for rent served upon respondent is insufficient and defective. The petitioner opposes the instant motion. The respondent filed a Reply.
RPAPL § 711(2) governs the procedures for a demand for rent. It states, in pertinent part, as follows:
A special proceeding may be maintained under this article upon the following grounds:
(2) the tenant has defaulted in the payment of rent, pursuant to the agreement under which the premises are held, and a demand of the rent has been made, or at least three days' notice in writing requiring, in the alternative, the payment of the rent, or possession of the premises, has been served upon him as prescribed in section 735 ...'
A statutory rent demand is one of the facts upon which a special proceeding is based ( seeRPAPL § 741[4]; Garvey v. Calder, 7 Misc.3d 130[A] [App Term, 9th & 10th Jud Dists 2005] ). Absent proof of a verbal demand or a proper three day written demand a nonpayment proceeding is jurisdictionally defective and must be dismissed ( see Matter of Salvatore and Catherine Pepe v. Miller & Miller Consulting Actuaries, 221 A.D.2d 545 [2d Dept 1995] ). A landlord must in the first instance both allege and prove that he has complied with the statutory conditions in order to become entitled to possession ( see Solack Estates, Inc. v. Goodman, 102 Misc.2d 504 [App Term, 1st Dept 1979]; Martine Associates LLC v. Minck, 5 Misc.3d 61 [App Term, 2d Dept 2004]; Sycamore Associates, Inc. v.. Dietz, 8 Misc.3d 132[A] [App, Term 9th & 10th Jud Dists 2005] ).
The purpose of the demand requirement is to afford a tenant notice so that he or she may be able to remedy the default and prevent litigation ( see 1675 Realty Co. v. Quinones, 576 N.Y.S.2d 995 [Civ Ct, Bronx County 1991] ). At a minimum, the landlord must inform the tenant of the particular period for which the rent is in default and the approximate good-faith sum of rent due ( see Ranallo v. Burns, 550 N.Y.S.2d 192 [3rd Dept 1990] ).
If a written demand is made, as in the instant case, the demand must be served pursuant to the provisions of RPAPL § 735 which requires the written notice be personally delivered to the respondent. If, after reasonable application, personal delivery of the demand cannot be effectuated, then the demand must be served by substituted service on a person of suitable age and discretion or by conspicuous placement on the entrance door of the premises and in addition by mailing to respondent both by registered or certified mail and by regular first class mail (RPAPL § 735[1] ).
In the instant case, Paragraph 10 of the petition states that:
Tenant failed to pay Petitioner rent and additional rent due and owing under the Lease in the aggregate amount of $23,624.61 due for the months of December 2012, January 2013 and February 2013, in the amount of $7,874.87 per month.
In addition, Paragraph 11 of the petition states, in relevant part:
A copy of the Notice to Tenant and affidavit of service are collectively annexed hereto as Exhibit “B”.
In support if its motion to dismiss, the respondent alleges that the three (3) day demand for rent is insufficient as petitioner relied upon Paragraph 16.02 of the lease which required ten (10) days notice, instead of three (3). The Court finds that the respondent's argument lacks merit.
Where a lease identifies a specific method for a demand for rent, the demand must be made according to the terms of the lease ( see Hendrickson v. Lexington Oil Company Inc., 41 A.D.2d 672 [2d Dept 1973]; Harris v. Apolant, 5 Misc.3d 1009[A] [Nassau Dist Ct 2004] ). Thus, in spite of the statutory authorization to make a rent demand verbally, the demand for rent must be made in writing if the lease so requires ( see Margis Realty v. Belaguer, 3/24/92 NYLJ 23, col. 2; [Civ Ct N.Y. County]; Lenzo v. Craig, 8/9/89 NYLJ 19, col.3 [Civ Ct Bronx County] ).
In the instant case, the three (3) day demand for rent not only complies with RPAPL § 711 in that it sufficiently details the amount of rent that is due and owing, it also complies with the terms of the written lease. Moreover, it was properly served in accordance with RPAPL § 735 [ see Affidavit of Service Annexed to Petition ]. Consequently, the fact that the notice afforded the tenant more time than required by statute, does not invalidate the notice ( see Minik v. Park, 217 A.D.2d 489 [1st Dept 1995] ).
In view of the foregoing, the respondent's motion to dismiss is hereby denied. Any remaining arguments advanced by respondent have been considered and found to lack merit.
This case is set down for conference on June 24, 2013 at 9:30 a.m.
This constitutes the decision and order of the Court.
So Ordered: