West Bushwick NRP Assoc., L.P. v Bushwick Coop. Fed. Credit Union
Annotate this CaseDecided on November 2, 2005
Civil Court, Kings County
West Bushwick NRP Associates, L.P., Petitioner-Landlord,
against
Bushwick Cooperative Federal Credit Union, Respondent -Tenant, "John Doe" and "Jane Doe," Respondent-Undertenants.
084000/05
George J. Silver, J.
In this commercial holdover proceeding, petitioner West Bushwick NRP Associates, L.P. ("petitioner") moves, pursuant to CPLR § 3212, for summary judgment, a final judgment of possession and the issuance of a warrant forthwith on the grounds that it has established the elements of a prima facie case for termination of a month-to-month tenancy and that respondent, Bushwick Cooperative Federal Credit Union ("respondent"), has no defense to its claim to possession. In support of its motion, petitioner argues that it is the owner of the subject premises [*2]located at 1475 Myrtle Avenue, Brooklyn, New York 11237, and that it has properly served respondent, a tenant in the commercial storefront at the subject premises, with a Notice of Petition, a Petition and a Notice of Termination. In opposition, respondent argues that petitioner's motion for summary judgment is premature as petitioner moved prior to the time issue was joined. Respondent further contends that the affirmative defenses asserted in its answer raise substantial and material issues of law and/or fact which are sufficient to defeat petitioner's motion. Respondent also argues that petitioner's reliance on a five month old prior termination notice and its failure to utilize a new thirty day notice constitute a violation of the subject matter jurisdiction prerequisite.
Respondent also cross-moves to dismiss the petition as premature on the ground that petitioner commenced the instant holdover proceeding before discontinuing a prior holdover action between the parties. Respondent claims that a landlord cannot "recycle" an already used prior termination notice as the basis for commencing a new holdover proceeding. Moreover, respondent claims that the thirty day notice is defective because it is not signed by a person authorized by the leasehold or law to terminate the respondent's tenancy. Finally, respondent contends that the notice of termination is defective because petitioner failed to tack on an additional five days to the thirty day notice, which respondent claims is required when service of the notice is effectuated by mail.
Petitioner argues in further support of its motion and in opposition to respondent's cross-motion that its use of the notice of termination in the instant holdover proceeding is proper in light of the fact that instant proceeding was commenced prior to termination of the previous holdover proceeding. Petitioner also contends that its agent was not required to annex or attach proof of agency to the notice of termination at the time the notice was signed and argues that the additional five days notice respondent claims it is entitled to applies only to residential holdover proceedings and notices to cure wherein service by a process server is not required. Moreover, petitioner claims that it is frivolous for respondent to challenge the authority of the signatory of the thirty termination notice, Scott Short, to terminate respondent's tenancy when respondent previously requested two extensions of its tenancy from Mr. Short. Petitioner also argues that respondent has not raised a defense or an issue of fact which would warrant the denial of petitioner's summary judgment motion.
Finally, in further opposition to petitioner's motion and in support of its cross-motion, respondent argues that it has been significantly prejudiced by petitioner's "bootstrapping" of the notice of termination in that respondent has paid months of "post-termination rent" to petitioner, has re-hired legal counsel to defend a new proceeding and has substantially altered its position in reliance on the five months of settlement negotiations engaged in during the prior proceeding and Respondent argues that such prejudice is a bar to petitioner's "recycling" of the 30 day termination notice. Respondent also reiterates its contentions that the notice of termination cannot serve as the basis for the instant holdover proceeding because it did originate from the petitioner company and that the notice of termination is defective because it did not provide an additional five days notice for service by mail.
Analysis [*3]
Section 232-a of the Real Property Law provides that "no monthly tenant or no tenant from month-to-month shall be removed from any lands or buildings in the City of New York on the grounds of holding over his term unless at least thirty days before the expiration of the term the landlord or his agent serve upon the tenant . . . a notice in writing to effect that the landlord elects to terminate the tenancy and that unless the tenant removes from such premises on the day on which his term expires the landlord will commence summary proceedings under the statute to remove such tenant therefrom." Under the theory that a tenant is entitled to know "with safety" whether a notice to terminate emanates from a person with the requisite authority to act on behalf of the landlord, it has been held that "a notice of termination signed by an agent or attorney who is not named in the lease as authorized to act for the landlord in such matters, and which is not authenticated or accompanied by proof of the latter's authority to bind the landlord in the giving of such notice, is legally insufficient to terminate the tenancy" (Siegel v Kentucky Fried Chicken, Inc., 108 AD2d 218, 220 [2d Dept 1985] [internal citations omitted]). However, in distinguishing Siegel, this court has noted that when "determining the sufficiency of a notice of termination, the court is permitted to look beyond the four corners of the notice to determine whether the appropriate legal requirements have been met" (Ohday Realty Corp. v Lupone, 192 Misc 2d 317, 319 [Civ Ct, Kings County 2002]). The notice of termination at issue here is signed by Mr. Scott Short and beneath his signature are the handwritten words "President of GP." It is undisputed that "GP" is not a party to this action and that evidence of Mr. Short's authority to act as "President of GP" on behalf of the petitioner-landlord did not accompany the notice of termination. Moreover, according to Mr. Short's affidavit, there is no lease agreement between the parties authorizing him, in is role as the "President of GP," to bind the petitioner-landlord in the giving of the notice of termination. The question, then, is whether respondent knew "with safety" that the notice of termination came from a person with the authority to act on the petitioner-landlord's behalf. In answering this question in the affirmative, petitioner contends that prior to the commencement of this holdover proceeding, respondent's principal, Mr. Jack Lawson, requested from Mr. Short two extensions of respondent's tenancy and attaches to its papers a letter dated December 10, 2004 addressed to Mr. Short and purportedly signed by Mr. Lawson in which Mr. Lawson requests that respondent's tenancy at 1475 Myrtle Avenue be extended through June 30, 2005. Respondent does not challenge the authenticity of said letter. Therefore, based upon respondent's uncontested prior dealing with Mr. Short, respondent was aware that Mr. Short was authorized to act on petitioner's behalf and the notice of termination is valid.
Equally unpersuasive is respondent's contention that petitioner may not "reuse" or "recycle" its notice of termination, dated April 25, 2005 and used in a prior holdover proceeding, to commence the instant holdover proceeding. In Hudson Waterfront Assocs. IV, L.P. v MTP 59 St LLC, 8 Misc 3d 136[A] [App Term, 1st Jud Dist 2005] the respondent-undertenant's technical arguments raised in its defense of a holdover proceeding were rejected and it was held that petitioner's use a notice of termination was sufficient to serve as the predicate for a second eviction proceeding "where the prior holdover proceeding had not been terminated at the time of the commencement of this proceeding and where tenant was caused no discernible prejudice." Here, the instant holdover proceeding was commenced on August 9, 2005 when Mr. Lawson was served with the notice of petition and petition. Petitioner discontinued the prior holdover [*4]proceeding by a notice of discontinuance dated August 11, 2005. The discernible prejudice cited by respondent, i.e., its payment of "post termination rent" to petitioner, its re-hiring of legal counsel and its substantially altered position, is irrelevant in that such prejudice would have occurred even if petitioner had served respondent with a new notice of termination. Moreover, respondent's counsel conceded at oral argument that respondent has found another premises in which to relocate its business but has been unable to take possession because of delays by its contractor in renovating the premises. Thus, none of the prejudice respondent claims it has suffered has resulted from petitioner's "recycling" of the notice of termination, making the notice legally sufficient to serve as the predicate for the instant holdover proceeding.
Finally, the court is unwillingly to extend the Court of Appeals holding in ATM One v Landverde, 2 NY3d 472, 812 NE2d 298, 779 NYS2d 802 [2004] to this action. In Landverde, the Court of Appeals explained that an owner seeking the removal of a tenant in a rent-stabilized housing accommodation based upon the tenant's wrongful act must give the tenant a ten-day written notice to cure and held that owners who serve said notice by mail must add five additional days to the ten day minimum cure period (id. at 477-78). The Court of Appeals gave no indication, however, that its holding extended beyond those situations wherein an owner attempts to remove a tenant from a rent-stabilized property and into a commercial context such as this and in the absent such guidance, either from the Court of Appeals itself, the Appellate Division, or the Appellate Term, this court will not apply Landverde to a commercial holdover proceeding.
The court has considered respondent's remaining contentions and finds them to be without merit.
Accordingly, it is hereby
ORDERED that petitioner's motion for summary judgment is granted; and it is further
ORDERED that petitioner is awarded a judgment of possession of the premises and that a warrant of eviction shall issue forthwith, execution stayed five days; and it is further
ORDERED that respondent's cross-motion is denied.
This constitutes the decision and order of the Court.
November 2, 2005
George J. Silver, J.C.C.
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