Opinion
SP3338/07.
Decided June 11, 2008.
Kenneth B. Mock, Esq., Attorney for Petitioner, Uniondale, New York; Nassau/Suffolk Law Services Committee, Inc., Attorney for Respondent, Hempstead, New York.
The petitioner, Mental Health Association of Nassau County, commenced this holdover proceeding to recover possession of the premises located at 545 Grant Avenue, 2nd Floor, West Hempstead, New York 11550. The petitioner seeks a final judgment of possession and warrant of eviction, along with the fair value of use and occupancy. The respondent moves for an order dismissing the petition and notice of petition pursuant to CPLR 3211(a)(1), a defense founded upon documentary evidence, CPLR 3211(a)(2), a lack of subject of matter jurisdiction and pursuant to RPAPL § 232(b). The petitioner opposes the respondent's motion and the respondent has filed a reply.
The petitioner is a not-for-profit organization who provided a room and common space to the respondent Craig Joosten. It is uncontroverted that respondent entered into a one year written lease beginning on or about April 1, 2001 [ see, Respondent'sReply, Exhibit "A"]. It is further uncontroverted that a renewal lease was executed by the respondent on or about December 15, 2005 [ see, Respondent's Affirmation in Opposition, Exhibit "A"]. Thereafter, the respondent became a month-to-month tenant. On or about May 28, 2007, the petitioner served a thirty (30) day termination notice which sought to terminate the respondent's tenancy effective June 30, 2007 [ see, Notice to Terminate Tenancy Annexed to Petition]. However, on about May 31, 2007, a criminal action was commenced and the respondent was charged with violating PL § 265.02(1) [Criminal Possession of a Weapon in the Third Degree], a class "D" felony. The charges stem out of an incident alleged to have occurred with an employee and staff member of MHA, named Hamilton Merilos.
On or about February 21, 2008, the Defendant plead guilty to Attempted Criminal Possession of a Weapon in the Third Degree (PL §§ 110/265.02[1]). As a result of that plea and sentencing, an Order of Protection was issued by Hon. Tammy Robbins on February 21, 2008. The Order of Protection, which remains in effect until February 2, 2009 provides that the respondent, Craig Joosten, shall stay away from the home, school, bus, place of employment, inter alia, of Hamilton Merilos, the petitioner's employee who works at 545 Grant Avenue, 2nd Floor, West Hempstead, the property which is the subject of this proceeding. Accordingly, any order of this Court which has the effect of granting the respondent access to 545 Grant Avenue, 2nd Floor, West Hempstead, NY would be in direct contravention of the Final Order of Protection issued by the County Court of Nassau County. Accordingly, the respondent's motion for a dismissal of this summary proceeding is denied, as moot. The petitioner is granted a judgment of possession and warrant of eviction, issuance forthwith.
Even assuming, arguendo, that the Court determined the respondent's motion upon its merits, the motion for a dismissal would be denied, for the reasons set forth below:
The respondent first contends that the thirty (30) day termination notice is ineffective to terminate the tenancy because the termination notice was signed by a Janet Solomon without any proof that the latter was authorized to bind the landlord in the giving of such notice. In support of this position, the respondent relies upon Siegel v. Kentucky Fried Chicken of Long Island, Inc., 67 NY2d 792, 501 NYS2d 317.
In opposition to the motion, the petitioner in relying upon RPAPL § 232(b), contends that there is no requirement that a termination notice be signed by the landlord himself in order to effectively terminate the respondent's tenancy. The petitioner further contends that the 30-day termination notice was proper because it was sent by a Janet Solomon, who was authorized to act on behalf of the landlord.
In the instant case, the property at issue is located in Nassau County and the term of the tenancy is month to month. To terminate such a tenancy, the landlord must comply with the notice set forth in Real Property Law § 232(b). That statute provides that:
"A monthly tenancy or tenancy from month to month of any lands or buildings located outside of the city of New York may be terminated by the landlord or the tenant upon his notifying the other at least one month before the expiration of the term of his election to terminate; provided, however, that no notification shall be necessary to terminate a tenancy for a definite term".
"There is no prescribed form to terminate a tenancy from month to month outside the City of New York" ( Industrial Funding Corp., Megna, 87 Misc 2d 443, 384 NYS2d 955 [Civ Ct, NY County 1976]). "[T]he notice can be oral or written, and may be served personally or otherwise, all that is required is that the notice be timely, definite and unequivocal; however, written notice and personal service are advisable" ( McGloine v. Dominy, 233 NYS2d 161 [Civ Ct, NY County 1962]). The notice must also come from either the landlord himself or from an individual who is an authorized agent of the landlord and who has the authority to bind the landlord ( see, Siegel v. Kentucky Fried Chicken of Long Island, Inc., 108 AD2d 218, 488 NYS2d 744 [2d Dept 1985], affd. 67 NY2d 792, 501 NYS2d 317; White Angel Realty v. Asian Bros. Corp., 183 Misc 2d 674, 706 NYS2d 583 [Nassau Dist Ct 2000]).
In Reeder v. Sayre, 70 NY 180, 1877 WL 12026), the Court of Appeals stated that the purpose of requiring evidence of the agent's authority to accompany the notice of termination is to permit the tenant to know "with safety" that the notice emanates from a person with the requisite authority so that the tenant may act thereon without the peril of being subject to claims from the owner.
To support the respondent's claim that the termination notice was insufficient, the respondent cites to Siegel v. Kentucky Fried Chicken of Long Island, Inc., 108 AD2d 218, 488 NYS2d 744 [2d Dept 1985], affd. 67 NY2d 792, 501 NYS2d 317 where a notice of termination was signed by a person claiming to be the owner's attorney. The underlying lease, however, named a different attorney as the owner's agent. Further, the tenant had no prior dealings with or knowledge of the attorney who signed the notice. The Court held that a notice of termination signed by an agent or attorney who is not named in the lease and which is not authenticated or accompanied by proof of the latter's authority to bind the landlord is legally insufficient to terminate the tenancy.
However, the opposite result was reached in 54-55 Street Co. v. Torres, 171 Misc 2d 237, 656 NYS2d 591 [App Term 1st Dept 1997], where the tenants had been billed by the managing agent for three months preceding the notice of default which the agent signed without any accompanying evidence of his authority. The Court distinguished these facts from Siegel, stating that, based on the existing relationship between the tenants and the managing agent, there could be no doubt about the managing agent's authority to bind the landlord. Hence, the notice of default signed by the managing agent was found to be legally sufficient.
Similarly, in Barstow Road Owners, Inc. v. Billing, 179 Misc 2d 958, 687 NYS2d 845 [Nassau Dist Ct 1998], the District Court of Nassau County found that the tenants clearly had knowledge that the managing agent who signed a ten (10) day notice to quit was the managing agent for the landlord. The evidence indicated that the tenants had repeated dealings with the agent over several years and paid their fees to that agent. Thus, the Court found the ten (10) day notice to quit to be sufficient.
This rule was expanded even further in White Angel Realty v. Asian Bros. Corp., 183 Misc 2d 674, 706 NYS2d 583 [Nassau Dist Ct 2000]. In determining the sufficiency of a notice of termination, the Court held that it may look beyond the four corners of the termination notice to determine whether the appropriate legal requirements have been met. The Court noted that the landlord is permitted to demonstrate not merely that the agent was authorized in a writing which accompanied the notice, or that the agent was named in the lease, but that previous dealings between the tenant and the agent can be used to establish the tenant's knowledge of and acquiescence in the agency. The Court further stated that the purpose of the holding in Siegel is to provide tenants with assurance that notices purported to come from the landlord are in fact so authorized. Whenever such assurance can be demonstrated to exist, either by documentation or actual occurrences, the statutory requirements have been satisfied.
Most recently in Brooks Drug, Inc. v. 279 Sunrise Highway, Inc., 2002 NY Slip Op 50330(u), the District Court of Nassau County held that although a notice of default sent from the sub-landlord's attorney did not satisfy the lease notice provision which required notice from the sub-landlord personally, the subtenants were equitably estopped from asserting a lack of notice. The Court reasoned that the subtenants after being served with the default notice contacted the sub-landlord's attorney on several occasions to negotiate an extension on which they could remain on the premises. Based upon these ongoing communications, the Court further reasoned that the subtenants were estopped from claiming that they did not know that the sub-landlord's attorney had the authority to act for the sub-landlord.
In the instant case, there is substantial evidence that previous dealings existed between the respondent and Janet Solomon. For example, the respondent's renewal lease of December 15, 2005 was executed by Janet Solomon and respondent. In addition, the contract agreement between the respondent and MHA dated June 8, 2005, which outlined the program responsibilities and expectations of respondent in order to maintain his tenancy was executed by both the respondent and Janet Solomon. Furthermore, it is alleged that numerous dealings and communications took place over several years between the respondent and Janet Solomon, as she is the program director in charge of the facility where respondent resides. These contacts along with the other evidence lead to this Court's conclusion that the termination notice received by respondent could be relied upon with assurances that Janet Solomon had the ability to bind MHA, the petitioner. Accordingly, the Court finds the thirty (30) day termination notice sent by Janet Solomon as an authorized agent of the landlord was sufficient.
Accordingly the Court holds that the thirty (30) day notice of termination was effective to terminate the respondent's tenancy.
Other arguments advanced by the respondent have been considered and found to be without merit.
Petitioner may proceed to evict respondent forthwith.
This constitutes the decision and order of this Court.