Reckson Operating Partnership, L.P. v LJC Corp.

[*1] Reckson Operating Partnership, L.P. v LJC Corp. 2006 NY Slip Op 52435(U) [14 Misc 3d 1207(A)] Decided on December 21, 2006 Nassau Dist Ct Fairgrieve, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 21, 2006
Nassau Dist Ct

Reckson Operating Partnership, L.P., Petitioner

against

LJC Corp., Respondent



SP 5622/06



Hamburger, Maxson, Yaffee, Wishod & Knauer, LLP, attorneys for Petitioner, 225 Broadhollow Road, Suite 301E, Melville, New York 11747, 631-694-2400; Mary T. Lucere PLLC, attorneys for Respondent,16 W. Hoffman Avenue, Lindenhurst, NY 11757, 631-226-4100.

Scott Fairgrieve, J.

The respondent moves for an order dismissing the within Petition and Notice of Petition. The petitioner opposes the instant motion.

The petitioner commenced this non-payment proceeding in October 2006, by the service of a Petition and Notice of Petition. The petitioner seeks a judgment of possession and warrant of eviction for the premises 50 Charles Lindberg Boulevard, Suite 90, Uniondale, New York 11553, and a money judgment for rent arrears in the sum of $10,905.34 with interest thereon from January 31, 2006.

The respondent moves to dismiss this proceeding upon the grounds that the petitioner failed to make a proper ten (10) day demand for rent pursuant to the parties' lease agreement.

Generally, a statutory rent demand is one of the facts upon which a special proceeding is based (RPAPL §741[4]). The minimum statutory requirements for a rent demand required by RPAPL §711(2) in order to maintain a summary proceeding, is that the petitioner make a three day oral demand for rent or serve a written demand on the tenant requiring payment of the rent due. If a written demand is made, the demand must be served pursuant to the provisions of RPAPL §735, which requires the written notice be personally delivered to the respondent. If, however, the lease expands the statutory notice period, the landlord is required to comply with the extended period and a failure to do so, requires dismissal of the proceeding (see, RPAPL §711(2); see also, Hendrickson v. [*2][*3]Lexington Oil Co., Inc., 41 AD2d 672, 340 NYS2d 963 [2d Dept 1973]; see also, Four Star Holding Co. V. Alex Furs, Inc., 153 Misc 2d 447, 590 NYS2d 667 [App Term 1992]).

The respondent contends that the three day notice is defective because pursuant to the parties' lease agreement, paragraph 28(A)(I), the petitioner was required to serve the respondent with a ten (10) day notice, which they failed to do. Paragraph 28(A)(I), states in relevant part:

28. (A) Upon the occurrence, at any time prior to or during the Demised Term, of any one or more of the following events (referred to as "Events of Default"):

(I) If Tenant shall default in the payment when due of any installment of rent or in the payment when due of any additional rent, and such default shall continue for a period of ten (10) days after notice by Landlord to Tenant of such default; or ...

In opposition, the petitioner argues that it was not required to comply with the ten (10) day clause in the lease, as he did not wish to regain possession of the premises, but rather sought to recover unpaid rent. Based upon this distinction, the petitioner maintains that a non-payment proceeding does not seek to terminate the respondent's tenancy. However, the Petition states in relevant part:

PLEASE TAKE NOTICE that a hearing at which you must appear will be held at the District Court of the County of Nassau, First District, Landlord/Tenant Part to be held at 99 Main Street, Hempstead, New York 11550, County of Nassau, Town of Hempstead, on October 23, 2006 at 9:30 a.m., on the annexed petition of Reckson Operating Partnership, L.P., which prays for a final judgment of eviction, awarding to the petitioner the possession of premises designated and described as follows: part of 50 Charles Lindberg Boulevard, Suite 90, Uniondale, New York 11553, and further granting to the petitioner such other and further relief as is demanded in the petition, which you must answer. (Emphasis Added)

Furthermore, the Petition, dated October 10, 2006, requests possession of the premises:

"Petitioner requests final judgment: awarding possession of the premises to the petitioner-landlord; issuance of a warrant to remove respondents from possession thereof . . ."

This Court concludes that the petitioner was required to comply with the ten (10) day notice, as required under the lease. Its failure to do so renders the Notice of Petition and Petition defective.

In view of the foregoing, this Court finds that the three (3) day notice was insufficient pursuant to the lease. Accordingly, the respondent's motion to dismiss is granted. [*4][*5]

So Ordered:

DISTRICT COURT JUDGE

Dated:December 21, 2006

CC:Mary T. Lucere, Esq.

Hamburger, Maxson, Yaffe, Wishod & Knauer, LLP

SF/mp