Opinion
2018-2131 RO C
02-06-2020
Joseph SCHLEIMER, Respondent, v. CLARKSVILLE INN RESTAURANT, LLC, Joe Szymanski and Gerard Reilly, Appellants.
The Braunstein Law Firm, LLC (Michael L. Braunstein of counsel), for appellants. Kantrowitz, Goldhamer & Graifman, P.C. (Randy J. Perlmutter of counsel), for respondent.
The Braunstein Law Firm, LLC (Michael L. Braunstein of counsel), for appellants.
Kantrowitz, Goldhamer & Graifman, P.C. (Randy J. Perlmutter of counsel), for respondent.
PRESENT: BRUCE E. TOLBERT, J.P., TERRY JANE RUDERMAN, ELIZABETH H. EMERSON, JJ
ORDERED that the final judgment is reversed, without costs, the trial order denying tenants' oral application to dismiss the petition is vacated, and tenants' application is granted.
In this commercial nonpayment proceeding, it is undisputed that landlord served a rent demand, which required tenants to pay the listed sums "on or before ten (10) days from service of this notice of default, or surrender possession of the premises to the landlord," at the same time that it served the petition. Tenants argue on appeal, as they did at the trial, that this "simultaneous service" was improper and that the petition should be dismissed.
Where the service of a petition does not give the noticed amount of time to pay the rent demanded or surrender possession, the nonpayment proceeding is premature and must be dismissed (see Gottesman Family Props., LLC v. Medi-System Renal Care Mgt. Servs., LLC , 55 Misc 3d 147[A], 2017 NY Slip Op 50690[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; see also T.D. Bank, N.A. v. Yeshiva Chofetz Chaim, Inc. , 48 Misc 3d 127[A], 2015 NY Slip Op 50912[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2015]; Lally v. Fasano-Lally , 22 Misc 3d 29 [App Term, 2d Dept, 9th & 10th Jud Dists 2008] ). We reach no other issue.
Accordingly, the final judgment is reversed, the trial order denying tenants' oral application to dismiss the petition is vacated, and tenants' application is granted.
TOLBERT, J.P., RUDERMAN and EMERSON, JJ., concur.