Parkview Apts., Corp. v Guy

[*1] Parkview Apts., Corp. v Guy 2007 NY Slip Op 50522(U) [15 Misc 3d 1106(A)] Decided on March 19, 2007 Just Ct Of Town Of Ossining, Westchester County Shapiro, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 19, 2007
Just Ct of Town of Ossining, Westchester County

Parkview Apartments, Corp., Petitioner

against

Donovan Guy, and all other persons in possession of the premises 117 South Highland Avenue, Apt. 41, Ossining New York 10562, Respondents.



20-07



Arlene S. Colangelo, Esq.

MIANO & COLANGELO

Attorneys for Petitioner

245 Main Street

White Plains, New York 10601

Margaret M. Flint, Esq.

Attorney for Respondents

and Richard A. Wright, Legal Intern

JOHN JAY LEGAL SERVICES, INC.

78 North Broadway

White Plains, New York 10603

Edwin S. Shapiro, J.

Petitioner-Landlord ("petitioner"), a co-operative apartment corporation, brought a holdover

proceeding against a non-resident tenant-owner and his daughter, an alleged sub-tenant in May,

2006 upon the grounds that no written authorization for the alleged sublet had been obtained and

that the sub-tenant/daughter and her fiancé had been disturbing other tenants in the building.

Following the service of a motion to dismiss, a stipulation of discontinuance was signed and filed

with this court.

Without having served and alleged a notice of termination of the tenancy, petitioner has now

filed the present purported holdover proceeding against the same tenants ("respondents"), again

alleging an unauthorized sublet by the named tenant to his daughter and, additionally, the

daughter's unauthorized harboring of a dog on the premises.

Motion to Dismiss

On this motion by respondents to dismiss the petition, petitioner does not dispute the [*2]

occupancy of the apartment by respondent/daughter and her fiancé, with petitioner's

knowledge, for the past six years. Respondents' motion seeks dismissal of the petition on

jurisdictional grounds by reason of petitioner's (1) incomplete compliance with the methods

of service on a non-resident tenant, as required by RPAPL §735 (1) (a); (2) failure to serve a

five-day notice of termination, as required by paragraph 31 of the proprietary lease, and to allege

in the petition, as required by law, that such notice was given; (3) omission of its attorney's

certification of the notice of petition and petition, as required by 22 NYCRR §130-1-a; and

(4) omission of its attorney's signature on the notice of petition, as required by RPAPL §731(1).

Analysis and Conclusions of Law

Although petitioner argues that it is entitled to the benefits of a strict "no waiver" provision

in the proprietary lease, it sneers at the clear and strict language of RPAPL §735 governing the

manner of service of the notice of petition and petition and suprisingly ignores the authority of

Parras v. Ricciardi, 185 Misc 2d 209 (NY Civ.Ct.2000); Dexter, 345, Inc. v. Lahosky, NYLJ

9/30/1998 at 25 (N.Y.Civ.Ct. 1998); and 417 Realty Associates v. Ryan, 110 Misc 2d 607,

613-14 (NY Civ.Ct.1981), claiming that "[t]here is simply no caselaw (sic) nor statute that

would require this absurd level of scrutiny in order to properly effect service."

Petitioner also rather desperately argues that its notice to cure should be construed to include

notice of termination.

As noted by respondents, petitioner incorrectly argues that the service upon the named tenant

was effective because it complied with CPLR 308. Respondents cite Friedman v. Dorfman,

N.Y.L.J. 6/23/2003, 26 (col.6), a decision of this court, holding that RPAPL §735, rather than [*3]

CPLR 308, must be followed to effect service in a summary proceeding.

RPAPL §735 provides, in pertinent part, that if the property sought to be recovered is not the

place of residence of a tenant to be served, and personal service has not been effected upon that

tenant, "if the petitioner shall have written information of the residence address of such person,"

the notice of petition and petition shall be mailed to him at that address "by registered or

certified mail, and by regular first class mail."

Respondents have established by uncontroverted documentary evidence that the named

tenant did not reside at the premises to which the proceeding related, that petitioner had in its

possession the address of the named tenant, and that petitioner did not mail the notice of petition

and petition to that address, in any manner. Therefore, under Parras v. Ricciardi, id., Dexter,

345, Inc. v. Lahosky, id., and/or any fair reading of RPAPL §735 in conjunction with CPLR

§3211(a)8, petitioner did not obtain in personam jurisdiction over the named tenant.

Behind the plain meaning of RPAPL §735 is the legislative intent to differentiate a

summary proceeding from a plenary action. As noted in Columbus Prop. Inc. v. I S K S Realty

Corp., 163 Misc 2d 446 (N.Y.Civ. Ct. 1994):

Because the petitioner obtains the benefit of an expedited and

simplified procedure which bypasses many of the usual

procedural steps of a plenary action, petitioner must prove

strict compliance with all of the requirements for a summary

proceeding.

Stated somewhat differently in 2 Rasch, Landlord and Tenant-Summary Proceedings, 3d ed.,

§§s 29:5, 29:13,

A summary proceeding is a statutory construct in derogation

of the common law, intended to provide a streamlined , [*4]

expeditious, means of recovering possession of real property.

In sum, petitioner's failure to serve the named tenant, Donovan Guy, at his actual place

of residence, in strict compliance with RPAPL §735, is fatal to its summary proceeding.

Therefore, the petition is hereby dismissed.

Because of our dismissal of the petition for lack of in personam jurisdiction, respondents'

remaining points are now moot.

Attorneys Fees

Both petitioner and respondents have applied for an award of attorneys fees. Respondents

have prevailed upon a carefully researched and cogently written presentation that has prevented,

at least for the time being, the termination of the named respondent's proprietary lease, the

forfeiture of his shares of stock as a tenant-owner, and the eviction of his daughter from the

premises.

Article 28 of the proprietary lease provides, in pertinent part:

If . . .the Lessor shall incur any expense . . . in instituting any action or

proceeding . . .the expense thereof to the Lessor, including reasonable

attorney's fees and disbursements, shall be paid by the Lessee to the

Lessor, on demand, as additional rent.

RPL §234 states, in pertinent part, that, when a clause contained in a residential lease allows a

landlord, in an action against a tenant, to collect attorney's fees from the tenant, then a reciprocal

right exists for the tenant to, in turn, collect such fees from the landlord, if the tenant is

successful in an action against the landlord.

Respondents were represented by John Jay Legal Services, Inc., apparently a not-for-profit

corporation created for student internships and community outreach by Pace University Law [*5]

School. Although respondents are not legally obligated to pay attorneys fees to their benefactors,

it is settled law in the Second Department that RPL §234 is not limited only to tenants who can

afford their own attorney, since that result would thwart the intent of the statute to require

landlords who have brought meritless eviction proceedings to pay for their tenant's attorney's

fees only when the tenant had financial resources to afford his own attorney. Maplewood

Management, Inc. v. Best 143 App Div 2d 978, 533 NYS2d 612 (2d Dept. 1998). We agree with

this decision and are, in any event, bound by it.

Unless the parties can agree upon the amount of attorney's fees and disbursements to be paid

by petitioner to respondents prior to April 2, 2007, the amount will be determined by the court

after a hearing which is hereby scheduled for 4:30:p.m. on that date.

This decision shall constitute an order of the court.

Dated: Ossining, New York

March 19, 2007

Edwin S. Shapiro,

Ossining Town Justice

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