Opinion
570456/04.
Decided May 16, 2006.
Tenant appeals from (1) an order of the Civil Court, New York County (Cynthia S. Kern, J.), dated June 13, 2003, which denied its motion to dismiss the petition in a commercial nonpayment proceeding; (2) an amended final judgment, same court (Geoffrey D. Wright, J.), entered August 18, 2004, after a nonjury trial, which awarded landlord possession and recovery of additional rent arrears in the amount of $38,427.39; and (3) a judgment, same court (Geoffrey D. Wright, J.), entered October 26, 2004, which awarded landlord $72,128.45 in attorneys' fees.
Order (Cynthia S. Kern, J.), dated June 13, 2003, amended final judgment (Geoffrey D. Wright, J.), entered August 18, 2004, and judgment (Geoffrey D. Wright, J.), entered October 26, 2004, affirmed, with one bill of $25 costs.
PRESENT: DAVIS, J.P., SCHOENFELD, J.
The written rent demand, signed by an agent of the landlord known to tenant, was not jurisdictionally defective, and met with the requirements of RPAPL 711(2) by affording tenant notice of the alleged amount due and the period for which such claim was made ( see 54-55 St. Co. v. Torres, 171 Misc 2d 237; Brusco v. Miller, 167 Misc 2d 54, 55).
Tenant's motion to dismiss the nonpayment proceeding pursuant to 22 NYCRR 208.14(d) was properly denied. After this proceeding was marked off the calendar and restored, it was adjourned when tenant was not ready to proceed on the trial date. On the eve of the rescheduled trial date, tenant served landlord with a discovery demand, made via an order to show cause, prompting a request by landlord for an opportunity to respond. The court, instead of adjourning the matter, marked it off-calendar to provide landlord time to respond to tenant's discovery demand, with a specific proviso that landlord could move to restore on five days notice. Under these circumstances, tenant has failed to demonstrate the applicability of 22 NYCRR 208.14(d).
Tenant's claim that it "unequivocally established" its entitlement to recoup its security deposit is unavailing. Tenant did not raise this claim until it interposed an amended answer, without leave of court or consent, nearly two years after its original answer was interposed. In any event, the record does not establish that tenant met the prerequisites of Article 70 of the lease for the return of the security deposit, i.e. that it had not defaulted in any of its monetary obligations under the lease on or before January 1, 1996.
Finally, the court properly awarded landlord attorneys' fees without a hearing since tenant's opposition papers only challenged landlord's status as the prevailing party and failed to dispute the reasonableness of the amount of legal fees demanded by landlord and shown to have been earned ( see Paganuzzi v. Primrose Mgt. Co., 268 AD2d 213).
This constitutes the decision and order of the court.
I concur.