Dorchester, LLC v Morgan

[*1] Dorchester, LLC v Morgan 2008 NY Slip Op 51153(U) [19 Misc 3d 1143(A)] Decided on June 9, 2008 District Court Of Nassau County, First District Fairgrieve, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 9, 2008
District Court of Nassau County, First District

Dorchester, LLC, Petitioner(s)

against

Jacqueline Morgan, Respondent(s)



SP 3593/07



Debra Genetin Tate, Esq.

Horing, Welikson & Rosen, P.C.

11 Hillside Avenue

Williston Park, NY 11596

Attorney for the Petitioner

Michael Wigutow, Esq.

Nassau Suffolk Law Services Committee, Inc.

One Helen Keller Way, 5th Floor

Hempstead, NY 11550

Attorney for the Respondent

Scott Fairgrieve, J.

By Motion to Reargue submitted on April 22, 2008, Respondent-Tenant Jacqueline Morgan moves for an order setting aside this Court's finding that the Petitioner-Landlord Dorchester LLC properly notified Respondent's counsel of Respondent's default in performance of the terms of the parties' stipulation of settlement. Petitioner cross-moves for re-execution of the warrant of eviction or, in the alternative, legal and moving fees incurred.

This matter commenced as a nonpayment summary proceeding by service of petition. After several adjournments, the parties entered into a stipulation of settlement, signed and dated October 18, 2007. The stipulation awarded rent arrears to the Petitioner, to be made by Respondent in two installments. The stipulation also provided that "upon default in the making of any of the payments required herein, Warrant may execute and three (3) day notice to Respondent's counsel." (emphasis added)

Respondent made the first of the payments, but defaulted on the second payment of $1,110.00 due by November 18, 2007. In a hearing on April 8, 2008, Petitioner's bookkeeper testified that she mailed a letter, dated November 19, 2007, to the office of Respondent's counsel indicating that Respondent was in default. By order dated April 8, 2008, this Court held that notice of default was mailed.

Respondent now seeks to set aside this Court's finding that proper notice was provided, maintaining that he did not receive the letter and that receipt of notice, rather than mailing of notice, is the legal standard.

There is a distinction to be made between service of process and service of notice. However, Respondent relies on Zagari v. Gleason, NYS2d 2002 WL 31207215 (September 22, 2002), in which the notice in question was notice of intention to terminate the underlying month-to-month tenancy as required by Real Property Law Section 232-b. In the case at bar, the notice in question is not required by statute, but is required by a stipulated agreement between the parties. The stipulation entered into by the parties in the current case does not specify the method of notice, nor does it specify the names of the individuals who must provide or be [*2]provided notice. Therefore, this Court may only require reasonable notice be provided to Respondent's counsel by the Petitioner.

In addition, it is well settled that receipt of notice "cannot be refuted by the defendant's mere denial of receipt." J.T.M. Group Inc. v. Fleischman, 2001 WL 1665333 (N.Y.Sup.App.Term) (October 24, 2001). See also Nassau Insurance Co. v. Murray, 46 NY2d 828 at 829 (1978). "In addition to the claim of no receipt, there must be a showing that routine office practice was not followed or was so careless that it would be unreasonable to assume that the notice was mailed." Nassau Insurance Co. v. Murray, 46 NY2d at 830.

Here, the Petitioner's bookkeeper testified that upon receipt of a stipulation of settlement, it was her responsibility to "record what is due, when it's due, to follow up on receipt, to verify receipt on the dates." The witness was familiar with stipulations, had been employed by law firms for seven years, and was qualified as part of her job description to determine whether payment had been received in accordance with the stipulation and then inform the tenant of his or her default.

The witness further testified that on November 19, the day after payment was due from Respondent, she verified that payment had not been received by checking her records. She testified that she herself drafted the letter providing notice of Respondent's default. Though the letter did not address Respondent's attorney by name, it was mailed to the proper address of his place of business, and was clearly marked with the index number of the case. The witness also gave an approximation of the time at which she mailed the letter by depositing it in a United States postal box. Lastly, the witness testified that when she prepared a document for mailing, she generally deposited it in the mailbox herself.

The evidence is sufficient to establish proper mailing. Therefore, Respondent's Motion to Reargue is hereby denied.

In addition to the issue of mailing of notice, Petitioner seeks re-execution of the warrant of eviction or, in the alternative, attorney fees and moving costs incurred. This Court's finding that notice of default was properly mailed renders the initial warrant of eviction and judgment for possession valid. Therefore, the warrant of eviction shall be re-executed and possession be granted

to Petitioner without stay. In the alternative, Petitioner may obtain a new warrant from the court to evict Respondent without stay, if necessary.

So Ordered:

/s/

District Court Judge

Dated: June 9, 2008 [*3]

CC:

SF/kgv