Corbo v West Side Travel

[*1] Corbo v West Side Travel 2008 NY Slip Op 51231(U) [20 Misc 3d 126(A)] Decided on June 12, 2008 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 12, 2008
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., GOLIA and STEINHARDT, JJ
2007-614 RI C.

Paschal A. Corbo, Respondent,

against

West Side Travel a/k/a Arrochar Variety Bargain Basement, Inc., Appellant.

Appeal from an order of the Civil Court of the City of New York, Richmond County (Philip S. Straniere, J.), dated March 28, 2007. The order denied tenant's motion seeking, among other things, to be restored to possession.

Order affirmed without costs.

Landlord commenced this commercial nonpayment proceeding by notice of petition and petition dated December 18, 2006, seeking $2,400 in rental arrears. The petition, verified by landlord, alleged that oral demands for rent had been made on November 9, 2006, and December 5, 13, and 18, 2006. Tenant failed to answer or
appear and, after an inquest, a final judgment was entered on January 24, 2007 awarding landlord possession and the sum of $500. Tenant did not move for relief from the final judgment or warrant before being evicted on or about February 16, 2007.

Subsequently, tenant moved for, among other things, restoration to possession. Tenant alleged that it had been misnamed in the petition as West Side Travel, instead of West Street Travel, that no money was due, and that landlord had not served a predicate rent notice upon it. The court denied tenant's motion, finding that the error in the travel agency's name was not prejudicial and that tenant had not proven its claim that it had paid all rent due and owing within five days of the entry of the final judgment.

We agree with the Civil Court that tenant did not establish sufficient grounds for the relief sought in its motion. Contrary to tenant's contention on appeal, landlord's petition properly alleged an oral demand for rent pursuant to RPAPL 711 (2) and service of a written demand was [*2]not required (Four Star Holding Co. v Alex Furs, 153 Misc 2d 447 [App Term, 1st Dept 1992]; Hutton v Malkin, 138 Misc 560 [App Term, 1st Dept 1930]). As the petition was verified on personal knowledge, landlord was not required, upon tenant's default, to establish at inquest his claim that he had made an oral rent demand (RPAPL 732 [3]; see Matter of Brusco v Braun, 84 NY2d 674 [1994]). Thus, tenant's claim with respect to the lack of a predicate rent notice is without merit.

The court below properly found that the error in tenant's name was de minimis and did not cause any confusion as to the party being sued (see e.g. Fa Wah Mgt., Inc. v Alvarrez, 18 Misc 3d 132[A], 2008 NY Slip Op 50086[U] [App Term, 2d & 11th Jud Dists 2008]; Lenox Rd. Utica Ave. Realty v Spencer, 184 Misc 2d 628 [App Term, 2d & 11th Jud Dists 2000]).

With respect to tenant's claim of payment, since tenant did not direct how its January 11, 2007 payment was to be applied, landlord was within his rights in applying part of that payment toward the current rent owed (see e.g. 1 Dolan, Rasch's Landlord and Tenant — Summary Proceedings § 12:22, at 558 [4th ed]). Accordingly, the court could find that tenant had not, at the time the final judgment was entered, paid all the rental arrears claimed in the petition, and could, under the circumstances, properly enter a default judgment for the amount demanded in the petition less the amount that landlord admitted at inquest that he had received. We note that tenant did not subsequently tender payment for the remainder of the rent owed.

Finally, even if tenant had shown sufficient grounds for relief from the default final judgment, restoration would be inappropriate in the circumstances presented. Since landlord has stated that he intends to terminate tenant's month-to-month tenancy in any event and, in fact, served a termination notice on tenant, restoration of this tenant would likely be futile (see e.g. Matter of 110-45 Queens Blvd. Garage v Park Briar Owners, 265 AD2d 415 [1999]).

Under the circumstances, the court below did not improvidently exercise its discretion in refusing to vacate the default final judgment and restore tenant to possession pursuant to CPLR 5015 (d). Tenant's remaining contentions are also without merit.

Pesce, P.J., Golia and Steinhardt, JJ., concur.