ATM Four, LLC v Miller

[*1] ATM Four, LLC v Miller 2012 NY Slip Op 51938(U) Decided on October 15, 2012 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 15, 2012
District Court of Nassau County, First District

ATM Four, LLC, Petitioner(s)

against

Kimberly A. Miller and JOHN DOE a/k/a JOHN TAYLOR, Respondent(s)



LT-002088-12



Wolfson & Grossman, LLP, Attorneys for Petitioner,1600 Stewart Avenue, Suite 603, Westbury, New York 11590, 516-745-8000; Michael G. Williams, Esq., Attorney for Respondent, 22 Pine Street, Suite 6, Freeport, New York 11520, 516-546-0390

Scott Fairgrieve, J.

On July 24, 2012 the respondent filed a motion to dismiss the Notice of Petition and Petition pursuant to CPLR 3211(a)(1), (2), (7) and CPLR 409 upon the grounds that the petitioner accepted rent from the respondent subsequent to the date set forth in the Termination Notice and prior to the commencement of this action. The petitioner opposes the instant motion.

On September 10, 2012 the respondent moved by Order to Show Cause to stay and enjoin petitioner from taking any further steps in this action. The petitioner opposes the respondent's application and cross moves for an order to amend the Petition which admittedly misstates the termination date of respondent's tenancy.

The petitioner commenced this holdover proceeding to recover possession [*2]of the premises located at 35 North Long Beach Avenue Apt 3E, Freeport, New York 11520. The petitioner seeks judgment of possession and a money judgment in the sum of $28,000.00 for rent arrears, use and occupancy in the sum of $1,425.00 per month for each month respondent remains in possession and legal fees in the sum of $1,500.00 dollars.

In order to determine the issues raised by both parties, the Court must first examine the contents of the Petition. It is well settled that the contents of a petition are set forth in RPAPL §741. They include: (1) allegations of the petitioner's and respondent's interests in the premises; (2) their relationship to one another; (3) a description of the premises; (4) the facts on which the proceeding is based, and (5) the relief sought (see Homestead Equities v Washington, 176 Misc 2d 459 [1998]).

In the instant case, the Petition alleges that ATM Four LLC and respondent, Kimberly A. Miller, entered into a one year lease agreement for Apt. 3E on or about January 1, 1990 which thereafter renewed yearly. Pursuant to paragraph 3 of the Petition, on or about January of 2006 Kimberly Miller unlawfully sublet the apartment to a John Taylor without the consent or permission of the landlord. Paragraph 8 of the Petition, however, states that John Taylor has illegally sublet the premises since on/or before 2005.

The Petition further indicates that the premises is rent stabilized and because John Taylor is an illegal tenant the petitioner is entitled to a greater amount of the rent. In other words, the Petition states that John Taylor was not entitled to pay the legally regulated rent and that he should have been paying fair market value. The Petition further alleges that the difference between fair market value and the legally regulated rent is $400.00 extra per month.

Paragraph 5 of the Petition states as follows:

The term for which said premises were rented by the respondent tenant expired on December 31, 2011 pursuant to the Notice of Termination of Tenancy annexed hereto.

It is the date set forth above, that is at issue in the instant case.

The Thirty Day Termination Notice, which was served upon respondent, states the following:

PLEASE TAKE NOTICE, that pursuant to Section 2504.4(d) of the [*3]Emergency Tenant Protection Act ("ETPA"), the owner and landlord does not intend to renew your lease for the subject premises, which expires on December 31, 2011, because the subject premises are not being occupied by you as your primary residence. [emphasis added]

The second page of the Thirty Day Termination Notice states in pertinent part that:

PLEASE TAKE NOTICE that pursuant to Section 2504.1 of the ETPA upon your failure to cure said wrongful acts or omissions subject to a right to cure within ten (10) days, the landlord will cancel your lease on January 9, 2012 and commence summary proceedings against you to remove you and all undertenants from the premises described herein. [emphasis added]

PLEASE TAKE FURTHER NOTICE, that in theevent you

fail to vacate or surrender possession of the subject premises on or before January 31, 2012, that being at least thirty (30) days after service of this notice upon you, the owner and landlord intends to commence an action or proceeding to recover possession......

The respondent contends that the Thirty Day Termination Notice along with the Notice of Petition sets forth the date of December 31, 2011 as the date in which respondent's tenancy terminated. The respondent further contends that the petitioner's acceptance of rent after the termination date, but prior to the commencement of this action, requires dismissal of the proceeding.

In opposition to the motion, the petitioner admits that the Thirty Day Termination Notice and Notice of Petition are inconsistent. However, the petitioner contends that it intended to end respondent's tenancy on January 9, 2012. The petitioner further contends that any reference in the Petition and Notice of Termination to the date of December 31, 2011 is a mistake. Thus, petitioner claims that its acceptance of the rent from the tenant on January 3, 2012 in no way vitiates the notice. It is these inconsistencies on which petitioner seeks to amend the Petition in its cross motion.

1. Petition

It is well settled that a failure to properly plead the facts upon which a special proceeding is based renders a petition defective, and warrants dismissal of a proceeding (see RPAPL §741[4]; Gilroy v Becker, 186 Misc 93 [App Term 1945]; Stier v President Hotel, Inc., 28 AD2d 795 [3rd Dept 1967]; Jersey Street [*4]Associates LLC. v Quality Cleaning Corporation, 2002 WL 484234 [2002]).

Moreover, if the facts upon which a proceeding are based are not properly plead, a dismissal of the proceedings may be appropriate, rather than an amendment (see Birchwood Towers No.2 Association v Schwartz, 98 AD2d 699 [2d Dept 1983]; Giannini v Stuart, 6 AD2d 418 [1958]). For example, a petition which contains a fundamental misstatement and/or omission which deprives the Court and the respondent of adequate notice of the transactions intended to be proved is subject to dismissal (see Jeffco Management Corp. v Local Development Corp of Crown Heights, 22 Misc 2d 141[A] [2nd & 11th Jud Dists 2009]).

2. Thirty Day Termination Notice

It is well established that in order to be valid a termination notice must be timely, definite, and unequivocal (see United Veterans Beacon House, Inc. v St. James, 781 NYS2d 628 [App Term, 9th and 10th Jud Dists 2003]). Moreover, the notice must terminate the tenancy on the final day of the rental term. In other words, if a rental terms ends on the 31st, a termination notice must end the tenancy on the 31st (see Best v Buday, 841 NYS2d 818 [App Term, 9th & 10th Jud Dists 2007]; Avalonbay Communities, Inc. v Betts, 791 NYS2d 867 [App Term, 9th & 10th Jud Dists 2004]).

A termination notice is a predicate notice to the commencement of a summary proceeding. A defective predicate notice provides a tenant with a successful defense against the proceeding (Chinatown Apts. v Chu Cho Lam, 51 NY2d 786 [1980]), as compliance with the statutory prerequisites constitutes a fact on which the proceeding is based and which the petitioner must plead and prove as part of its prima facie case (see RPAPL §741[4]; 170 West 85 Street Tenants Assn. v Cruz, 173 AD2d 338 [1st Dept 1991]).

Where a condition precedent to a proceeding has not been met that condition may not be satisfied nunc pro tunc by amending the predicate notice (see Second & E. 82 Realty LLC v 82nd Street Gily Corp., 192 Misc 2d 55 [2002] citing to 170 West 85 Street Tenants Assn. v Cruz, 173 AD2d 338 [1st Dept 1991]).

In the instant case, the Court finds the Thirty Day Termination Notice defective. It clearly states two different dates upon which respondent's tenancy terminated. Although this may have been an oversight by petitioner, summary proceedings are creatures of statute and must be strictly complied with. [*5]

Moreover, the Court can not adopt the January 9, 2012 date as the petitioner seeks, as respondent's tenancy ran from the first to the thirtieth of each month. Thus, any notice to terminate the tenancy must likewise follow those time frames.

3. Acceptance of Rent

It is well established that a landlord may continue to accept rent until the termination date set forth in a termination notice without vitiating the notice (see Top Value Homes, Inc. v Continental Petroleum Corp, 784 NYS2d 924 [Nassau Dist Ct 2004]; Amalgamated Housing Corp v Luxenberg, 8 Misc 2d 831 [1957]).

However, the landlord's acceptance of rent for a period subsequent to the termination notice or expiration of the rental agreement, but prior to the filing of a summary proceeding re-establishes the tenancy on a month to month basis. As a result, the termination notice is vitiated and the action is subject to dismissal (see Vita v Dol-Fan, III Inc., 852 NYS2d 589 [App Term, 9th & 10th Jud Dists 2007]; Associated Realties v Brown, 146 Misc 2d 1069 [1990]; Roxborough Apartment Corp. v Becker, 176 Misc 2d 503 [1998]).

In the instant case, the respondent's tenancy was terminated on December 31, 2011. Thus, the petitioner's acceptance of rent on January 3, 2012 in the sum of $1,287.56 was improper and vitiated the notice. It further requires a dismissal of this proceeding.

Accordingly, the respondent's motion to dismiss is hereby granted in all respects. The respondent's order to show cause which sought a stay is rendered moot. The petitioner's cross motion to amend the Petition is denied in its entirety.

Any remaining arguments raised by both parties were considered and found to lack merit.

This constitutes the decision and order of the court.

So Ordered:

/s/ Hon. Scott Fairgrieve

DISTRICT COURT JUDGE

Dated:October 15, 2012