430 Broome St. Realty Corp. v Bonnouvrier
Annotate this CaseDecided on November 16, 2007
Supreme Court, New York County
430 Broome Street Realty Corp., Plaintiff,
against
David Bonnouvrier and "Jane Doe" being fictitious and intended to refer to the additional person in possession of the premises 430 Broome Street, NY, NY Entire Fifth Floor, Defendants.
104789/07
Attorneys Plaintiff:
Robert M. Salzman, Esq.
Salzman & Salzman, LLP
26 Court StreetSuite 2207
Brooklyn, NY 11242
Tele. No. (718) 624-2394
Attorneys for Defendants:
Jacques F. Rose, Esq.
Hartman, Ule, Rose & Ratner, LLP
305 BroadwaySuite 1201
New York, NY 10007
(212) 437-9110
Louis B. York, J.
Upon the foregoing papers, it is
ORDERED that this motion to vacate the default is granted. Movant is not required to exhaust every conceivable means of obtaining knowledge of the date for the oral argument - movant relied on two modes of notice - the Court's notice and also the attorney's clerical service. The failure of these two methods is a reasonable excuse for the movant's default which is vacated. The defendant's prior submissions in opposition to the [*2]motion, annexed as exhibits to defendant's moving papers in this motion, establish a colorable defense.
Now, the Court considers the plaintiff's motion for summary judgment on its action for ejectment.
Plaintiff moves for summary judgment seeking possession and for the deposit into court of a sum for use and occupancy which is the equivalent of the rent previously paid before the defendant stopped paying rent. The defendant tenant opposes the motion with defenses of retaliatory eviction, no residential certificate of occupancy, breach of implied warranty of habitability and failure to terminate this month-to month tenancy by the service of a 30-day notice.
This building is a commercial premises. Defendant occupies it as a residence. The lease expired several years ago and the defendant continued to pay rent on a monthly basis. Dissatisfied with the maintenance of the building, the defendant had his lawyer write to the plaintiff listing his complaints. At the same time, defendant withheld the rent. The plaintiff then brought this ejectment action.
The tenant argues, inter-alia that under Real Property Law §232-a, service of a 30-day notice is a condition precedent to obtaining a Certificate of Eviction. The plaintiff-landlord counters that §232-a is applicable only to summary proceedings. Under the common law, no prior notice is necessary.
Real Property Law §232-a states that:
No monthly tenant, or tenant from month to month, shall hereafter be removed
from occupancy unless at least 30 days before the expiration of the term the landlord or his agent
serve ... a notice in writing to the effect that the landlord elects to terminate the tenancy and that
unless the tenant removes from the premises on the day on which the term expires the landlord
will commence a summary proceeding under the statute to remove such tenant therefrom.
If the Court accepts the plaintiff's argument that the plain meaning of the statute requires a 30-day notice when a summary proceeding is brought but does not require such a notice if an ejectment is brought, then the Court would be required to dismiss this action because the statute provides that the exclusive remedy for evicting a month-to-month tenant is a summary proceeding. Under the common law, contends plaintiff, no such notice is required, nor is it required in Article 7 of the Real Property law which codifies the common law rule on ejectment. But that is not how the courts in this jurisdiction have ruled, and that is not how this Court rules in requiring that a 30-day notice is a condition precedent to commencing an action for ejectment.
To support his position, the plaintiff relies heavily on East 82 LLC v
O'Gormley, 295 AD2d 173, 743 NYS2d 473 [1st Dept 2002]), the only Appellate
Division, First Department decision dealing with a 30-day notice in an ejectment action. In that
case, there was a prior summary proceeding which was dismissed and there was [*3]incontrovertible evidence that the premises could not be converted
from a commercial to a non-commercial premises. The Court noting that there was a "surfeit of
notice", held that RPL §232-a did not have to be satisfied in that case. However, that case
is sui generis and should be limited to its peculiar facts. The lower courts in the First
Department have by and large followed Alleyne v Townsley, 110 AD2d 74, 487
NYS2d 600 [2d Dept 1985] where the Appellate Division in
the Second Department upheld the termination of a tenancy after the defendant
actually served the 30-day Notice of Termination, satisfying the condition precedent requirement
of §232-a. In Prana v Growth
Fund v Lazola, 8 Misc 3d 667, 798 NYS2d 895 [Sup NY Cty 2005] the Court
specifically held East 82 v Gormley to its special circumstances. In
Trump Plaza Owners v Weitz, 16 Misc 3d 1115, ___NYS___2d [Sup NY Cty
2007]2007, 905, the Court specifically followed Prana when it held that the
predicate §232-a notice must be sent to the tenant before the ejectment action is brought.
A distinction has been recognized between a month-to-month tenancy and an ejectment action that is brought when a fixed term tenancy expires. When a fixed term expires and the landlord does not extend it by thereafter accepting rent, no notice is required. Where the landlord accepts rent after the lease has expired and thereby creates a month-to-month tenancy, a statute (RPL §232-a) specifically requires a 30-day Notice of Termination, (See, Kosa v Legg, 12 Misc 3d 369, 810 NYS2d 840 [Sup Kings Cty 2006]). No such notice was given in this case. Accordingly, it is
ORDERED and ADJUDGED that this action is dismissed.
Dated:Enter:
_______________________
Louis B. York, J.S.C.
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