Garvey v Calder

[*1] Garvey v Calder 2005 NYSlipOp 50538(U) Decided on April 13, 2005 Appellate Term, Second Department 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 13, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: McCABE, P.J., RUDOLPH and ANGIOLILLO, JJ.
2004-539 W C

Mary R. Garvey, Appellant,

against

Matthew G. Calder, Respondent.

Appeal by landlord from an order of the Justice Court, Village of Larchmont, Westchester County (T. Beaver, J.), entered February 17, 2004, which granted tenant's motion to dismiss the petition.

Order unanimously affirmed without costs.

A review of the record on appeal indicates that landlord did not adequately refute the assertion contained in tenant's moving papers upon his motion to dismiss that landlord failed to meet the predicate requirement of a nonpayment summary proceeding, which is either a demand for rent, or at least 3 days' written notice requiring payment of the rent due or possession of the premises, served in compliance with RPAPL 735 (see RPAPL 711 [2]). This material noncompliance with the statute requires dismissal of the proceeding (see Matter of Salvatore & Catherine Pepe v Miller
& Miller Consulting Actuaries, 221 AD2d 545 [1995]; Martine Assoc. LLC v Minck, 5 Misc 3d 61 [App Term, 9th & 10th Jud Dists 2004]; 2 Dolan, Rasch's Landlord and Tenant - Summary Proceedings § 32:13, at 499-500 [4th ed]). It should be noted that it also appears that landlord failed to comply with the notice requirement of the lease. Accordingly, the court below properly granted tenant's motion dismissing the petition.
Decision Date: April 13, 2005