Bank of N.Y. v Kaplan
Annotate this CaseDecided on July 13, 2006
Civil Court of the City of New York, New York County
The Bank of New York and Robert C. Thompson, Jr., as Co-Trustees under the Last Will and Testament of Catherine Hamersley, Petitioners,
against
Mary E. Kaplan, Respondent.
054925/06
Attorney for Petitioners:
BELKIN BURDEN WENIG & GOLDMAN, LLP,
BY: Martin Meltzer, Esq.
270 Madison Avenue
New York, NY 10016
212-867-4466
Attorney for Respondent:
FISCHER & MANDELL LLP
BY: Mitchell G. Mandell, Esq.
546 Fifth Avenue - 15th Floor
New York, NY 10036
212-840-9300
Pam Jackman-Brown, J.
The instant proceeding was commenced for non payment of rents for the period May 1, 2004, through April 30, 2006, in the amount of $425,750.00. Respondent has interposed an Answer with a jury demand. Thereafter, Respondent moved, pursuant to CPLR 409(b) and 3212, for an order granting summary judgment. Petitioners opposed.
The parties entered into a landlord and tenant relationship pursuant to a written lease. The lease dated March 18, 1985, between Bank of New York and Robert C. Thompson, Jr. as Trustee under the Last Will and Testament of Catherine Hamersley Carpenter (referred as "Petitioners") and John Borie Ryerson was for a twenty-one (21) year term commencing May 1, 1983, and ending April 30, 2004, for a yearly rent of $14,250.00 and the half year rent of $7,125.00. On November 9, 1994, the lease was [*2]assigned from Mr. Ryerson to Mary E. Kaplan (referred as "Respondent"). Both the lease and assignment describe the subject premises as lot and block with boundary street names. No specific lot number was designated in the lease or the assignment. The Notice of Petition describes the premises upon which removal is sought as:
"The building located at 25 Washington Square North,
which is noted as Block 551, Lot 14, on the City of New
York Tax Assessment Maps, and is situated on the
northerly side of Washington Square North, between Fifth
Avenue and Washington Square West, County of New
York in the City of New York, as demanded in the petition."
Both sides agree that the subject premises being sought to recover is the entire premises described in the lease and assignment. They, also, agree that the described premises consists of two separate buildings. After argument, this Court requested both sides to submit a letter indicating what address is used for the subject premises. By letter dated May 4, 2006, Respondent wrote that "the property consists of two buildings with two separate entrances and mailing addresses." The mailing addresses are "25 Washington Square North" and "8 MacDougal Alley". Petitioners have not submitted a letter in response.
In the lease, Respondent has the option of renewing which condition is outlined in paragraph 19. In the petition, Petitioners seek payment of rent based on a default lease renewal or, in the alternative, possession based on failure to renew.
Respondent moves to dismiss on several grounds. First, she argues that the rent demand lacks good faith since there was no agreement to the renewal lease or that Petitioner has failed to comply with the original lease condition for fixing the renewal rent. Respondent, further, argues that she has exercised her option to renew and that the process is not yet completed; therefore, there is no determined rent to be demanded.
Pursuant to RPAPL §741, Petitioners must show the necessary elements in the petition for non payment of rents. A rent demand is the prerequisite for all nonpayment proceeding. RPAPL §711(2). Petitioners' compliance with the lease renewal is applicable only to the extent that the rent demanded is fairly proper. While the demand must be specific, the amount demanded need not be the exact amount due. Scherer, Residential Landlord and Tenant in New York §9:27, citing, Thompson-Houston Electric Co. v Durant Land Imp. Co., 4 Misc 207, 23 NYS 900 (C.P. 1893, rev'd on other grounds, 144 NY34 (1894); Ranalli v Burns, 157 AD2d 936 (3rd Dept 1990). However, the amount demanded must be in good faith. Polestar 5th Property Assocs., LLC v Philips International Holding Corp., NYLJ, Feb. 28, 2001, at 18 col 2 (App Term 1st Dept). A rent demand is held to the same liberal construction as generally accorded pleadings in modern civil litigation. 501 Seventh Ave. Assocs., LLC v 501 Seventh Ave. Bake Corp., 7 Misc 3d 137A (App Term 1st Dept 2003). In addition, the Petition must allege that the [*3]rent was demanded. RPAPL §741 (4); Sycamore Assocs., Inc v Dietz, 9 Misc 3d 132A; NYLJ, July 18, 2005, at 38, col 4 (App Term 9th & 10th Depts).
The lease paragraph 18 sets forth the means by which the Petitioners may cancel the lease upon default including commencement of a summary proceeding which forms the basis of the instant proceeding. The lease is silent with respect to the notice requirement for default, therefore, the statutory requirement under RPAPL §§ 711 and 741 is applicable. The petition in paragraph 27 alleges that a three-day rent demand was served. The demand with an attached breakdown seeks $425,750.00 in rental arrears. Respondent argues that this amount is not a good faith estimate because the parties did not complete the renewal process outlined in paragraph 19 of the lease. Petitioners counter that since Respondent has failed to timely submit her appraisal, as the condition for renewal, the Petitioners have properly calculated the rent from their appraisal report. Based on this premise and for the purpose of commencing this proceeding, the demand establishes a good faith basis for the amount sought. Whether Petitioners are justified in commencing this proceeding or whether Petitioners have accurately calculated the rent owed are triable issues of fact, which defeats the Respondent's motion for summary judgment based on this theory.
Secondly, the interim rent paid by Respondent does not defeat this summary proceeding unless Respondent shows that the full rent demanded was paid prior to commencement of this proceeding. No such proof was shown.
Thirdly, the petition demands rent based on Petitioners's deeming the lease renewed by using their appraisal report. See Petition ¶¶23 & 24. However, alternatively, Petitioners seek possession upon termination of the lease based on Respondent's failure to properly renew the lease. See Petition ¶31. Respondent, therefore, seeks dismissal on the basis of inconsistent theories.
A petition cannot be based on alternative inconsistent theories. Scherer, Residential Landlord and Tenant in New York §7:136. See, also, 141 St Assoc v Smith, NYLJ, June 20, 1991, at 25, col 3 (App Term 1st Dept.). The petition seeks rent which by that legal term acknowledges there is a tenancy pursuant to an agreement. Therefore, the payment of the demanded rent satisfies the petition and the tenancy continues. However, the petition seeking possession by that legal term there is no relationship and therefore the occupancy terminates upon a judgment of possession. Consequently, this petition which seeks both rents and termination is inconsistent and defective. Therefore, the motion for summary judgment is granted.
The Court need not reach the remaining arguments espoused by Respondent. However, the Court makes the following observations with respect to the issue of the description of the demised premises. There is no dispute that Respondent leased the entire premises consisting of two separate buildings which are described in the lease and assignment as bounded by block and lot. This description is repeated in the Notice of Petition with an additional description of a street address for one of the building [*4]designated as "25 Washington Square North". This street address is repeated in the caption of the pleadings and was used by the process server. The other building was not described or was proof of service shown.
The description in the petition must be specific enough to allow the Marshal, when executing the warrant of eviction, to locate the premises without additional information (MTA v Ronnybrook Farm Dairy 2000 Inc., NYLJ, May 15, 2002, at 19, col 3). Where the description in the petition is specifically described with an attached map, the description is held to be sufficient enough for recovery by a Marshal. See, Suite 1700 Corp v Inouye & Ogden, NYLJ, Jan. 20, 2004, at 26, col 1; see also, 2290 12th Ave LLC v Doe, NYLJ, Dec. 5, 2002, at 22, col 5.
In this case, Petitioners seek possession of the entire subject premises which encompasses two separate buildings. However, the street address in the Notice of Petition describes one building. The map description under the street address presumably includes both buildings. However, confusion may arise as to which description the Marshal may use to locate the entire premises which recovery is sought. A clarification is definitely needed to point the Marshal in the right direction. Pursuant to RPAPL §741(3), the petition is the controlling document which must include the specific description where removal is sought. Consequently, the Marshal may only look to the petition which may include an attached map description to locate the premises. Notably, there is no description in the petition; however, it refers to the lease and the assignment. See Petition ¶6 & ¶8. The lease description is inclusive of both buildings. The street description in the Notice of Petition refers to one building but the additional information of the block and lot description creates conflicting and confusing directions for a Marshal to locate the correct premises for recovery.
The Court need not reach the remaining issues raised in Respondent's motion. The motion for summary judgment is granted based on inconsistent theories in the Petition.
The above constitutes the Decision and Order of the Court.
Dated: New York, New York ______________________________
July 13, 2006
PAM JACKMAN-BROWN, JHC
Copies to both sides:
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