Seaton v Chavez

[*1] Seaton v Chavez 2006 NY Slip Op 50481(U) [11 Misc 3d 135(A)] Decided on March 27, 2006 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 27, 2006
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., TANENBAUM and LIPPMAN, JJ
2005-670 S C.

Linda Seaton, Respondent,

against

Ligia Chavez, Appellant.

Appeal from a final judgment of the Justice Court of the Town of Southampton, Suffolk County (Deborah E. Kooperstein, J.), entered on August 10, 2004, deemed (see CPLR 5520 [c]) an appeal from an amended final judgment entered on October 26, 2004. The amended final judgment, after a nonjury trial, awarded landlord the sum of $7,370.

Amended final judgment reversed without costs and petition dismissed.

Landlord commenced this summary proceeding pursuant to a petition alleging both holdover and nonpayment claims. Landlord's holdover claim must be dismissed because landlord never alleged or proved service of a notice of termination as required by the lease. Moreover, where a landlord commences such inconsistent proceedings, only the nonpayment claim is maintainable (see Motor Parkway Realty Corp. v IPM Prods. Corp., NYLJ, May 1, 1997 [App Term, 9th & 10th Jud Dists]; Kesten v Ansell, NYLJ, May 19, 1994 [App Term, 9th & 10th Jud Dists]). With respect to the nonpayment claim, the petition alleged and the proof at trial showed that the three-day notice required under RPAPL 711 (2) was only mailed to tenant and not served upon her as prescribed in RPAPL 735. Landlord's failure to comply with the service requirement of the RPAPL mandates dismissal of the nonpayment proceeding (see Tolman v Heading, 11 App Div 264 [1896]; Brophy v Winter, NYLJ, Mar. 22, 1996 [App Term, 9th & 10th Jud Dists]). Therefore, the amended final judgment is reversed and the petition dismissed.

Rudolph, P.J., Tanenbaum and Lippman, JJ., concur. [*2]
Decision Date: March 27, 2006