RPS Greenvale Realty, LLC v Rosa's of Roslyn, Inc.
Annotate this CaseDecided on March 7, 2008
Nassau Dist Ct
RPS Greenvale Realty, LLC, Petitioner(s)
against
Rosa's of Roslyn, Inc. and Stefano Troia, Respondent(s)
SP 5401/07
REPRESENTATION:
Kramer & Shapiro, LLP, Attorneys for Respondents, 80-02 Kew Gardens Road, Suite 302, Kew Gardens, New York 11415, 718-520-1600; Rosenberg, Calica & Birney, LLP, Attorneys for Petitioner, 100 Garden City Plaza, Suite 408, Garden City, New York 11530-3200, 516747-7400.
Scott Fairgrieve, J.
Petitioner commenced this non-payment proceeding in October of 2007 by the service of a petition and notice of petition. The petitioner sought a final judgment of eviction and an order awarding the petitioner possession of the premises described as pizzeria at 5 Glen Cove Road, Greenvale, New York. Further, a demand was made for a judgment against Rosa's of Roslyn and Stefano Troia for the sum of $12,978.00, with interest from September 15, 2007, together with a demand for at least $1,500.00 for the petitioner's attorney's fees.
A petition on default was granted on October 31, 2007 by the Hon. Robert H. Spergel. A judgment in favor of the landlord was entered on November 5, 2007, whereby the petitioner was awarded possession of the premises, $12,978.00 for rent and $1,646.24 for attorney's fees. A warrant of eviction was signed by the Hon. Scott Fairgrieve on November 9, 2007.
By order to show cause, the respondents moved for an order vacating the default in answering and restoring the matter to the calendar. They also sought an order vacating the default and permitting the respondents to pay all arrears forthwith and to reinstate the tenancy. The petitioner opposes this motion. On December 21, 2007, the last return date of the order to show cause, the respondents were given permission to make an additional motion seeking to dismiss the petition. [*2]
In support of respondents' order to show cause, Stefano
Trioa maintains that because of a dispute with the store manager he was unaware that the
manager had been served "with
non-payment papers." Further, the respondent contends that a substantial investment
has been made in the store and that the failure to pay the current rent was inadvertent.
Respondents' counsel argues that Mr. Trioa had been advised by the store manager that the rent
was paid in full and that Trioa only found out about the petition after its return date.
The respondents' motion is granted upon a finding of excusable default and a possible meritorious defense to the extent that the judgment of possession and the warrant of eviction are vacated. The Court will entertain the respondents' motion to dismiss.
The respondents move to dismiss arguing that the landlord failed to make a proper rent demand pursuant to RPAPL §711(2). They further argue that the petitioner should be dismissed for lack of personal jurisdiction, pursuant to CPLR 3211(a)(8) and RPAPL §735 for the alleged failure to serve the petition and notice of petition to the additional addresses listed in the lease agreement. Lastly, respondents seek a dismissal, pursuant to CPLR 3211(a)(7) and RPAPL §741(2), as against respondent-guarantor, Stefano Troia, for lack of landlord-tenant relationship. The petitioner opposes this motion.
For the reasons stated below, the Court finds the respondents' motion to be without merit.
This Court finds that the respondents waived any objection to the service of the predicate notice and the notice of petition by not including same in the order to show cause to vacate the default. In Landlord and Tenant Practice in New York, Daniel Finkelstein and Lucas A. Ferrara, § 15:041, the following is written which has direct application to the case at bar: The respondent may waive improper service of a predicate notice and of the Notice of Petition and Petition by:appearing in the proceeding and failing to interpose (or preserve) a service-related objection in an Answer; orfailing to raise the ground in a pre-answer motion to dismiss;interposing "unrelated" counterclaims.[*3]
In 1890 Realty Co. v. Ford, 121 Misc 2d 834 (Civ Ct Kings County 1983), the court held that the respondent waived his objection to service of the pleadings by failure to assert same in the first order to show cause pursuant to CPLR Sec. 3211(e):
Regarding the issue of service, respondent alleged in her second order to show cause, dated September 27, 1983, that the Court lacked jurisdiction over the person of respondent due to improper service of the notice of petition and petition. The Court finds that respondent waived said defense by failing to assert same in her answer or first order to show cause. CPLR Section 3211(e), which is applicable to proceedings in the Civil Court under Section 1002 of the New York City Civil Court Act, provides in substance that any objection based upon lack of in personam jurisdiction is waived if not raised in the responsive pleading or by motion prior to answer.
However, even if this Court had not found that the respondents had waived any objection to the service of the predicate notice and the notice of petition, their arguments would be without merit.
The respondents argue that the petitioner failed to comply with the stricter predicate notice requirements set under the lease. They rely on paragraph 17. Said paragraph provides that if there is a default in the payment of rent, Owner shall serve a Fifteen (15) Day Notice of Default and if the Default is not cured at the end of the Fifteen (15) day period, Owner may serve a Five (5) Day Notice of Cancellation, which will terminate the Lease at the expiration of the second notice, the five (5) Day Notice of Cancellation. Respondents maintain that the petitioner did not comply with paragraph 17 by failing to serve a Five (5) Day Notice of Cancellation. Respondents also allege that even if the Five (5) Day Notice was not required, the Notice of Default and to Cure was defective in that it failed to give the respondent adequate notice by law.
In Reckson Operating Partnership, LP v. LJC Corporation 17 Misc 3d 138(A)(9th and 10th Jud Dists 2007) the tenant moved to dismiss the petition arguing that the landlord was required, under the terms of the lease, to serve a 10-day notice of default as a condition precedent to maintaining the proceeding, and that the landlord failed to do so. The Appellate Term held that the language of a lease which required the giving of a 10-day notice only if the landlord elected to treat the tenant's nonpayment of rent as an "Event of Default" and to terminate the lease based thereon did not require the landlord to treat the tenant's nonpayment of rent as an "Event of Default" or did it foreclose the landlord from maintaining a nonpayment proceeding without serving a 10-day notice. Consequently, the fact that a 10-day notice was not served did not provide the basis for dismissal of the nonpayment petition.
This Court finds that paragraph 17 does not require the landlord to treat the tenant's [*4]nonpayment of rent as a default or predicate to terminate the lease.
Therefore, it does not limit the landlord's ability to institute a proceeding for the non payment of
rent. The landlord demanded the rent giving the tenant fifteen days notice to pay and the tenant
failed to do so.
Therefore, the respondent's allegation of lack of subject matter jurisdiction is
meritless.
Respondent also claims that the predicate notice served in this case was defective because this proceeding was not timely commenced. Respondent argues the following: 7.The Court of Appeals has held in ATM One v. Landaverde, 2 NY3d 472, 779, N.Y.S. 2d 808 (2004) that a Ten (10) Day Notice to Cure, served by mail upon a Tenant, is subject to an additional Five (5) Days in computing the minimum cure period, to ensure that the full cure period is provided to a Tenant. This case involved the Emergency Tenant Protection Act, but must apply equally to the right of every Tenant to be afforded the full cure period required to avoid a forfeiture of Lease. This is particularly true of commercial tenancies, which are not afforded a Post-Judgment Statutory Right to Cure, as are residential tenants within the City of New York, pursuant to RPAPL Section 753(4).8.In the present case, when the Five (5) Day additional time is added to the Fifteen (15) Day Notice of Default and to Cure, Respondent is entitled to twenty (20) days Notice. The Petitioner only gave nineteen (19) days Notice, which makes the predicate Notice defective and requires dismissal of the proceeding.9.The Fifteen (15) Day Notice of Default and to Cure was, according to the Affidavit of Service, mailed on September 16, 2007, to the store premises and to the Guarantor, Stefano Troia, at his Bayside address. In computing the twenty (20) day period, (15 days notice plus 5 additional days for mailing) for the expiration of the Notice, the 20th day would be October 16, 2007. The Notice only gave until October 15, 2007 to cure the default. The proceeding must be dismissed for lack of a proper predicate Notice, which is a condition precedent to the bringing of a Summary Proceeding.
This Court has carefully examined the holding of ATM One, LLC v. Landaverde, supra, and concludes that same does not apply to commercial leases and there was no intention by the Court of Appeals to extend this rule beyond the limited circumstances presented of a residential tenant under EPTA regulation. The parties were free to fashion the [*5]standards of service through negotiation and providing for same in the lease clauses.
Other courts have also refused to extend the Landaverde rule. In Skyview Holdings, LLC v. Cunningham, 13 Misc 3d 102 (App Term 2006), the court refused to extend said rule to all notices. Further, in 170 East 77th LLC v. Berenson, 12 Misc 3d 1017 (Civ Ct NY County 2006), the court refused to extend the rule to a termination notice for an unregulated apartment.
Respondents' counsel argues that no mailings were made by the petitioner to the Kew Gardens address listed on the lease. Counsel maintains that, pursuant to RPAPL §735(1)(b), where a petitioner has written information of any office or business for the corporate respondent, a copy of the petition and notice of petition should be sent to the other known address. Therefore, counsel posits the failure to mail process to the Kew Gardens address deprives the Court of jurisdiction for petitioner's failure to comply with the strict service requirement of RPAPL §735(1).
Service of papers in a summary proceeding is governed by RPAPL §735. Said provision provides in §735(1)(b):
Service of the notice of petition and petition shall be made by personally delivering them to the respondent; or by delivering to and leaving personally with a person of suitable age and discretion who resides or is employed at the property sought to be recovered, a copy of the notice of petition and petition, if upon reasonable application admittance can be obtained and such person found who will receive it; or if admittance cannot be obtained and such person found, by affixing a copy of the notice and petition upon a conspicuous part of the property sought to be recovered or placing a copy under the entrance door of such premises; and in addition, within one day after such delivering to such suitable person or such affixing or placement, by mailing to the respondent both by registered or certified mail and by regular first class mail, (b) if a corporation, joint-stock or other unincorporated association, as follows: at the property sought to be recovered, and if the principal office or principal place of business of such corporation, joint stock or other unincorporated association is not located on the property sought to be recovered, and if the petitioner shall have written information of the principal office or principal place of business within the state, at the last place as to which petitioner has such information, or if the petitioner shall have no such information but shall have written information of any office or place of business within the state, to any such place as to which the petitioner has such information. Allegations as to such information as may affect the mailing address shall be set forth either in the petition, or in a separate affidavit and filed as part of the proof of service. [*6]
Here the Notice of Petition and the Petition were delivered personally to Charlie Rosa Maria, manager and person in charge of the respondent, Rosa's of Roslyn, Inc. The statute provides that service may be made upon a corporation personally, by service of suitable age and discretion, or by "nail and mail." While the specific mailing requirements for the second and third types of service are set forth in the statute, RPAPL §735(1) is silent as to how a corporation may be personally served, and resort must then be had to the CPLR. (Service Station Realty Corp. v. Universal Fuel Service, 7 Misc 3d 1021(A) [Nassau Dist Ct 2005]). This reliance on the CPLR is also in accord with Landlord and Tenant Practice in New York, Daniel Finkelstein and Lucas A. Ferrara, § 14:167, wherein it is stated: "Personal" delivery to a corporate respondent under NY Real Property Actions and Proceedings Law § 735 should comply with N.Y.C.P.L.R. 311(a)(1), which governs service of process upon a corporation in civil actions. The latter statute permits personal delivery to be made upon an officer, director, managing or general agent, cashier or assistant cashier, or any other agent authorized by appointment or law to receive service on the entity's behalf.
CPLR § 311(a) states in relevant part: Personal service upon a corporation or governmental subdivision shall be made by delivering the summons as follows:(1) upon any domestic or foreign corporation, to an officer, director, managing or general agent, or cashier or assistant cashier or to any other agent authorized by appointment or by law to receive service.
The Court finds that service upon Charlie Rosa Marie, the manager of the respondent corporation, constituted personal service upon the corporation pursuant to RPAPL § 735 (see also, McDee Family LP v. Royal T's Gymnastics, Inc.,15 Misc 3d 1145A (Nassau Dist Ct 2007). The motion to dismiss for lack of personal jurisdiction is denied.
The third branch of the respondents' motion which seeks to dismiss the petition as against the respondent guarantor Stefano Troia is moot. The judgment was only entered against Rosa's of Roslyn, the tenant, not Mr Troia.
In conclusion, the judgment of possession and warrant of eviction are vacated. The respondents' motion to dismiss the petition is denied.
So Ordered:
/s/
DISTRICT COURT JUDGE
Dated:March 7, 2008
CC:Rosenberg, Calica & Birney, LLP
Kramer & Shapiro, LLP
SF/mp
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