240 W. 37th LLC v BOA Fashion, Inc.

[*1] 240 W. 37th LLC v BOA Fashion, Inc. 2009 NY Slip Op 51823(U) [24 Misc 3d 145(A)] Decided on August 24, 2009 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 24, 2009
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Schoenfeld, Heitler, JJ
570455/08.

240 West 37th LLC, Petitioner-Landlord-Respondent, - -

against

BOA Fashion, Inc., Respondent-Tenant-Appellant, -and- XYZ Corp, John Doe and Jane Doe, Respondents.

Tenant, as limited by its briefs, appeals from that portion of an order of the Civil Court of the City of New York, New York County (Geoffrey D. Wright, J.), entered July 14, 2008, which, upon reargument, adhered to its prior order granting landlord's motion for summary judgment on the holdover petition.

Per Curiam.

Order (Geoffrey D. Wright, J.), dated July 14, 2008, reversed, with $10 costs, landlord's motion denied and tenant's cross motion to dismiss the holdover petition is granted.

The notice to cure underlying this commercial holdover proceeding, advising that the tenancy would be terminated unless tenant cured unspecified violations, was fatally deficient. While the purported notice stated verbatim the terms of the lease provision pertaining to tenant's various insurance obligations, it conspicuously failed to inform tenant of the precise defaults alleged. "The purpose of a notice to cure is to specifically apprise the tenant of claimed defaults in its obligations under the lease and of the forfeiture and termination of the lease if the claimed default is not cured within a set period of time" (Filmtrucks, Inc. v Express Indus. & Term. Corp., 127 AD2d 509, 510 [1987]). Where, as here, a valuable leasehold is at risk and the tenant is under a burden to promptly cure, it is imperative that the cure notice particularize the nature of the default(s) with clarity and factual basis. A mere reference to or recitation of a numbered lease provision, without specifying the nature of the violation(s), is insufficient.

Were we to review the merits of landlord's claims, we would find that the alleged lease violations were either not established by preponderant evidence or were not so substantial as to warrant the forfeiture of tenant's valuable, long-term commercial tenancy (see Ray & W Cut, Inc. v 240 West 37, LLC., 58 AD3d 415 [2009]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: August 24, 2009