Schleimer v Clarksville Inn Rest., LLC

[*1] Schleimer v Clarksville Inn Rest., LLC 2020 NY Slip Op 50205(U) Decided on February 6, 2020 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 6, 2020
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : BRUCE E. TOLBERT, J.P., TERRY JANE RUDERMAN, ELIZABETH H. EMERSON, JJ
2018-2131 RO C

Joseph Schleimer, Respondent,

against

Clarksville Inn Restaurant, LLC, Joe Szymanski and Gerard Reilly, Appellants.

The Braunstein Law Firm, LLC (Michael L. Braunstein of counsel), for appellants. Kantrowitz, Goldhamer & Graifman, P.C. (Randy J. Perlmutter of counsel), for respondent.

Appeal from a final judgment of the Justice Court of the Town of Clarkstown, Rockland County (David M. Ascher, J.), entered August 2, 2018. The final judgment, upon the denial of tenants' oral trial application to dismiss the petition, after a nonjury trial, awarded landlord possession and the principal sum of $28,250 in a nonpayment summary proceeding.

ORDERED that the final judgment is reversed, without costs, the trial order denying tenants' oral application to dismiss the petition is vacated, and tenants' application is granted.

In this commercial nonpayment proceeding, it is undisputed that landlord served a rent demand, which required tenants to pay the listed sums "on or before ten (10) days from service of this notice of default, or surrender possession of the premises to the landlord," at the same time that it served the petition. Tenants argue on appeal, as they did at the trial, that this "simultaneous service" was improper and that the petition should be dismissed.

Where the service of a petition does not give the noticed amount of time to pay the rent [*2]demanded or surrender possession, the nonpayment proceeding is premature and must be dismissed (see Gottesman Family Props., LLC v Medi-System Renal Care Mgt. Servs., LLC, 55 Misc 3d 147[A], 2017 NY Slip Op 50690[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; see also T.D. Bank, N.A. v Yeshiva Chofetz Chaim, Inc.,48 Misc 3d 127[A], 2015 NY Slip Op 50912[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2015]; Lally v Fasano-Lally,22 Misc 3d 29 [App Term, 2d Dept, 9th & 10th Jud Dists 2008]). We reach no other issue.

Accordingly, the final judgment is reversed, the trial order denying tenants' oral application to dismiss the petition is vacated, and tenants' application is granted.

TOLBERT, J.P., RUDERMAN and EMERSON, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: February 6, 2020