Kabro Assoc. LLC v KDMC Rest. Inc.

[*1] Kabro Assoc. LLC v KDMC Rest. Inc. 2005 NY Slip Op 51896(U) [10 Misc 3d 127(A)] Decided on November 4, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 4, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: RUDOLPH, P.J., ANGIOLILLO and McCABE, JJ.
2004-1772 S C

Kabro Associates LLC, Respondent,

against

KDMC Rest. Inc., d/b/a Schooners Restaurant, Appellant. -and- JOHN DOE AND JANE DOE, Undertenants.

Appeal from a final judgment of the District Court of Suffolk County, Fifth District (James Flanagan, J.), entered on October 27, 2004. The final judgment, after a nonjury trial, awarded landlord possession and the sum of $11,627.20.

Final judgment unanimously reversed without costs and petition dismissed.

In this commercial holdover proceeding, tenant was served with a notice to cure alleging that tenant was in breach of various clauses in the lease and demanding that tenant cure the breaches. However, the notice did not cite section 5.04 of the lease [*2]
which section was the sole basis of the trial court's ruling and the section under which tenant was obligated to repair the defective plumbing.

Inasmuch as a valid predicate notice is a condition precedent to a summary holdover proceeding (see Chinatown Apts. v Chu Cho Lam, 51 NY2d 786 [1980]), the petition must be dismissed (Henry and Baltic Associates v K & Q Food Corp., 7 Misc 3d 83 [App Term, 2d & 11th Jud Dists 2005]). Language in written instruments that work a forfeiture must be strictly construed (Lerner v Johnson, 167 AD2d 372 [1990]). In any event, landlord did not sufficiently establish that the plumbing line which was causing the leak was on tenant's premises.
Decision Date: November 04, 2005