R & R Stone Assoc. v Café Gerardo

[*1] R & R Stone Assoc. v Café Gerardo 2012 NY Slip Op 52249(U) Decided on November 21, 2012 City Court Of Rye Latwin, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 21, 2012
City Court of Rye

R & R Stone Associates, Petitioner,

against

Café Gerardo d/b/a Café Livorno, Respondent.



LT12-240



Petitioner by Meighan & Neculsamer, Mamaroneck, NY (Garrison R. Corwin, Jr. Esq.)

Defendant by Herbert Adler, Esq., White Plains, NY

Joseph L. Latwin, J.

This is a non-payment summary proceeding. Respondent moved to dismiss the proceeding claiming that a proper pre-petition notice was not timely served.

According to the petition, the petitioner entered into a 10 year lease for the premises in question with Sorrel Restaurant Corp. that expired in 2005. That lease was assigned to Segale Corp. in 1996. In 1998, the lease was assigned to and assumed by the Respondent with the consent of the Petitioner. Upon the termination of the Lease, Respondent remained in possession. The petition alleges the tenancy continued after the expiration of the lease as a month to month tenancy. Petitioner claims a substantial amount of rent due since the expiration of the lease for rent and additional rent.

Petitioner alleges service of a five day notice demanding payment of rent as specified in the expired lease.

Respondent claims this five day notice is not sufficient since RPL 232-b requires a one months notice of the election to terminate a month to month tenancy. [*2]

Petitioner failed to file any opposition to the motion, even after the Court's Civil Clerk called to ask if any papers were forthcoming.

On a motion to dismiss the petition for failure to state a cause of action under CPLR 3211(a)(7), the petition must be construed in the light most favorable to the petitioner. Davis v. CCF Capital Corp., 277 AD2d 342, 343,

717 NYS2d 207, 209 [2nd Dept 2000]. The court must also accept the facts as alleged in the complaint as true and "accord [the petitioner] the benefit of every possible favorable inference" Sokoloff v. Harriman Estates Dev. Corp., 96 NY2d 409, 414 [2001]. Thus, when evaluating whether a petition is sufficient to survive a motion to dismiss pursuant to CPLR 3211(a)(7), initially, "the sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail." Ruffino v. New York City Tr. Auth., 55 AD3d 817, 818, 865 NYS2d 667 [2nd Dept 2008].

Real Property Law 232-c provides,

Where a tenant whose term is longer than one month holds over after the expiration of such term, such holding over shall not give to the landlord the option to hold the tenant for a new term solely by virtue of the tenant's holding over. In the case of such a holding over by the tenant, the landlord may proceed, in any manner permitted by law, to remove the tenant, or, if the landlord shall accept rent for any period subsequent to the expiration of such term, then, unless an agreement either express or implied is made providing otherwise, the tenancy created by the acceptance of such rent shall be a tenancy from month to month commencing on the first day after the expiration of such term.

Here, the term of the initial lease was for more than one month. There was no allegation in the petition of any acceptance of any rent nor any subsequent agreement, express or implied. Thus, the tenant is a month to month tenant.

Under Real Property Law 232-b,

A monthly tenancy or tenancy from month to month of any lands or buildings located outside of the city of New York may be terminated by the landlord or the tenant upon his notifying the other at least one month before the [*3]expiration of the term of his election to terminate. . . .

The purpose of RPL 232-c "is to change, in the case of tenants whose term is longer than one month, the common-law rule that a holdover tenant may be held as a tenant for a new term." (NY Legis. Doc., 1959, No. 65 [D], p. 139.)

The original tenancy in the instant case had its birth in an agreement arrived at between the landlord and prior assigning tenant. A new tenancy must have the same origin. The mere giving of a notice to a month-to-month tenant that his rent will be increased upon his holding over, and tenant does hold over, cannot be deemed an assent by the tenant to the new tenancy at such increased rental. . . .. There was no termination of the tenancy, pursuant to section 232-c of the Real Property Law. Absent a 30-day notice of termination of the existing month-to-month tenancy served pursuant to section 232-c, the landlord's notice of a rental increase was ineffective. The change sought must be effected by an agreement of the parties, either express or implied, or by some act of the tenant other than just holding over, from which it appears that he has agreed to a new tenancy. Reimer v Kaslov, 61 Misc 2d 960, 307 NYS2d 760 [Civ Ct Kings County 1970] (citations omitted).

The landlord's remedy is limited to removal of the tenant and damages, both incidental and for use and occupation. An action for nonpayment of rent, based on a notice purporting to fix a rent, never agreed upon by tenant and never paid by tenant, does not lie, there being no tenancy in fact or at law obligating the tenant for such rent. Jaroslow v Lehigh Val. R.R. Co., 23 NY2d 991, 298 NYS2d 999 [1969] & Samson Management, LLC v. Hubert, 92 AD3d 932, 933, 939 NYS2d 138 [2nd Dept, 2012].

It is undisputed that petitioner never served a 30 day notice pursuant to RPL 232-b. "Where a notice is required to be given prior to the commencement of a summary proceeding, the petition must show that it has been duly given. Failure to allege these facts renders the petition jurisdictionally defective. The reason for this rule is well illustrated by the following example. A tenancy at will, it has been seen, is only terminable upon the landlord's giving a written notice of not less than thirty days requiring the tenant to remove from the premises. Until the tenancy is thus put to an end, the tenant cannot be said to be holding over after the expiration of the term. Therefore, in a holdover proceeding brought to dispossess a tenant at will, the fact that such notice has been given must be alleged in the petition to [*4]confer jurisdiction over the subject matter." 3 Rasch. NY Landlord & Tenant § 41:25 (4th Ed.).

Accordingly, it is,

ORDERED and ADJUDGED that the respondent's motion to dismiss is granted, and it is further

ORDERED that the petition is dismissed..

November 21, 2012_________________________

JOSEPH L. LATWIN

Rye City Court Judge

ENTERED

__________________

Mary Jo Garrity

Appeals

An appeal shall be taken by serving on the adverse party a notice of appeal and filing it in the Rye City Court Clerk's office. A notice shall designate the party taking the appeal, the judgment or order or specific part of the judgment or order appealed from and the court to which the appeal is taken. CPLR § 5515.

Pursuant to UCCA § 1701 "Appeals in civil causes shall be taken to" the appellate term of the supreme court, 9th Judicial District.

An appeal as of right from a judgment entered in a small claim or a commercial claim must be taken within thirty days of the following, whichever first occurs:

1. service by the court of a copy of the judgment appealed from upon the appellant.

2. service by a party of a copy of the judgment appealed from upon the appellant.

3. service by the appellant of a copy of the judgment appealed from upon a party. [*5]

Where service as provided in paragraphs one through three of this subdivision is by mail, five days shall be added to the thirty day period prescribed in this section. UCCA § 1703(b).

Papers -

Affirmation of Herbert Adler, Esq dated November 12, 2012; & -

Petition dated October 9, 2012.