Madison Plaza Commercial Owners, LLC v EB Leasing, LLC
Annotate this CaseDecided on August 31, 2010
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Shulman, Hunter, Jr., JJ
570775/09.
Madison Plaza Commercial Owners, LLC, Petitioner-Landlord-Respondent,
against
EB Leasing, LLC, Respondent-Tenant-Appellant.
Tenant EB Leasing, LLC and proposed intervenors Dr. Leonid Agranat and New
Millennium Dentistry, P.C., appeal from an order of the Civil Court of the City of New York,
New York County (Joan M. Kenney, J.), dated September 23, 2009, which denied their joint
motion (1) to vacate a default final judgment entered against tenant, and (2) for leave to permit
the proposed intervenors to intervene in a nonpayment summary proceeding.
Per Curiam.
Order (Joan M. Kenney, J.), dated September 23, 2009,
affirmed, with $10 costs.
Landlord and tenant entered into a 10-year lease for the subject commercial premises. The lease expressly required the demised premises to be used as a dental office, and identified proposed intervenor Agranat, a licensed dentist who was the principal of proposed intervenor New Millennium Dentistry, P.C., as the intended subtenant of the premises. The lease permitted tenant and Agranat to enter into a written sublease, which was subject to landlord's approval; however, no sublease was ever executed between tenant and Agranat, and no sublease was ever submitted to landlord. As a condition of both the lease and sublease, tenant's sole member, Bayever, and Agranat were required to execute a personal guarantee securing the payment of rent under the lease. Notably, both the lease and guarantee listed tenant's office address as the demised premises. Similarly, the guarantee listed the demised premises as Agranat's office address. No other addresses for tenant or Agranat were identified in the lease or personal guarantee.
On December 5, 2006, landlord served a three-day rent demand on tenant, and tenant alone, at the demised premises by conspicuous place service. Approximately one month later (January 2007), landlord commenced this nonpayment summary proceeding against tenant, serving tenant with the notice of petition and petition by affix-and-mail service at the demised premises. Neither Agranat nor his professional corporation was named as a party to the proceeding, and neither was served with the initiatory papers. Upon tenant's failure to appear, a default final judgment was entered on March 27, 2007 awarding landlord possession as against [*2]tenant. Tenant was evicted from the demised premises on April 23, 2007.
In March 2008, tenant, Bayever, Agranat and Agranat's professional corporation commenced a wrongful eviction action in Supreme Court against landlord. By a June 2009 order, Supreme Court held in abeyance competing motions by the parties for summary judgment, affording the plaintiffs in that plenary action an opportunity to litigate the issue of the propriety of the eviction in Civil Court. Prompted by this order, tenant and the proposed intervenors moved jointly for relief in Civil Court in July 2009. Tenant sought to vacate the default final judgment entered against it, and the proposed intervenors sought leave to intervene in the Civil Court proceeding, which had been concluded in the Spring of 2007. Civil Court denied the motion of tenant and the proposed intervenors, and we affirm.
Tenant demonstrated no basis to vacate the default final judgment rendered against it. Tenant's assertion that the court lacked subject matter jurisdiction over the summary proceeding because landlord did not name Agranat and his professional corporation as parties is meritless, since the failure to do so did not affect the court's subject matter jurisdiction, i.e., competency to adjudicate the summary proceeding. Nor was landlord required to name them as parties to obtain relief against tenant (see Triborough Br. & Tunnel Auth. v Wimpfheimer, 165 Misc 2d 584 [1995]). Similarly without merit is tenant's assertion that the court lacked personal jurisdiction over tenant, since "reasonable application" was made by landlord before utilizing conspicuous place service (see generally Naman v Sylveen Realty Co., 222 AD2d 564 [1995]; 809-811 Kings Highway, LLC v Pulse Laser Skin Care, 25 Misc 3d 130[A], 2009 NY Slip Op 52121[U] [2009]), and service at the demised premises, the address listed in the lease and guarantee as the office address of tenant, was proper (cf. E.O.R. Five of New York v Fountain House, Inc., NYLJ, September 22, 1995, at 26, col 1 [App Term, 1st Dept]). Moreover, the affidavit of service of the notice of petition and petition was filed three business days after the process was mailed (see RPAPL 735[b][2]). In this regard we note that the third calender day after the process was mailed was a legal holiday (see General Construction Law § 24), extending to the next succeeding business day the day on which the affidavit of service was filed the deadline for the filing of the affidavit (see General Construction Law § 25-a).
We reject tenant's argument that landlord was required, pursuant to the lease, to mail additional copies of the notice of petition and petition to tenant's attorney, since this is a nonpayment proceeding brought pursuant to RPAPL 711(2), and "there was no indication here that the parties intended to vary the statutory notice requirements and such an intention will not be presumed unless clearly expressed" (Broadway 54th Improvement Corp. v Hit Factory Broadway, Inc., NYLJ, January 20, 1998, at 29, col 4 [App Term, 1st Dept]). We also reject tenant's challenges to the content of the rent demand (see 10 Midwood LLC v Hyacinth, 2003 NY Slip Op 50789[U] [2003]; see generally 191 Chrystie, LLC v Sonnier, 21 Misc 3d 144[A], 2008 NY Slip Op 52513[U] [2008]).
Finally, Civil Court providently exercised its discretion in (implicitly) denying that branch of the motion seeking leave to permit the proposed intervenors Agranat and his professional corporation to intervene in the proceeding, since they did not attempt to intervene until July 2009, well over two years after the default final judgment was entered and tenant was evicted (see Oparaji v Weston, 293 AD2d 592 [2002]). Accordingly, that branch of the joint motion seeking intervention relief was not "timely" under CPLR 1012 or CPLR 1013. [*3]
THIS CONSTITUTES THE DECISION AND ORDER
OF THE COURT.
Decision Date: August 31, 2010
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