Holy Spirit Assn. for the Unification of World Christianity v World Harmony Found., Inc.

[*1] Holy Spirit Assn. for the Unification of World Christianity v World Harmony Found., Inc. 2008 NY Slip Op 50754(U) [19 Misc 3d 1117(A)] Decided on March 24, 2008 Civil Court Of The City Of New York, New York County Padilla, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 24, 2008
Civil Court of the City of New York, New York County

The Holy Spirit Association for the Unification of World Christianity, Petitioner

against

The World Harmony Foundation, Inc., and Jane Min Dai, Respondent



056823/08



Attorney for Petitioner: Rosenberg and Estis, P.C., by Hal N. Beerman, Esq.

Attorney for Respondent: Fishman & Neil, LLP by James B. Fishman

Jose A. Padilla, J.

In this motion for summary judgment, respondents seek dismissal of a holdover proceeding. First, respondents assert petitioner-landlord's acceptance of rent, after termination of the tenancy but before commencement of the lawsuit, vitiates this action. Respondents also argue petitioner's retention of their check, even if not cashed, constitutes acceptance of a month- to- month tenancy in the absence of any showing that it was promptly returned. Finally, at oral argument, respondents contend that even if they had tendered counterfeit cash, instead of a bad check, a dismissal is still warranted.

A review of the undisputed facts and relevant case law reveals respondents, as the proponents of a motion for summary judgment, have failed to establish entitlement to relief as a matter of law ( Winegrad v N.Y.U. Med. Ctr., 64 NY2d 851 [1985] ).

After November 30, 2007, the expiration date of the lease between the parties, respondents tendered to petitioner a check, dated December 1, 2007 in the sum of $1800.00, presumably for December's rent. Petitioner presented the check to the bank, but the instrument failed to clear on two occasions due to insufficient funds. While respondents urge this Court to focus solely on petitioner's conduct following receipt of the tendered check, this Court cannot overlook respondents' action ab initio.

It is well settled that tender of a check, for an amount due, is not valid when there are insufficient funds on which the negotiable instrument is drawn ( Lightbody v Ontario Bank, 11 Wend. 9 [1833] ,affd sub nom. Ontario Bank v Lightbody 13 Wend.101 [1834]; see, Dime Sav. Bank v Barnes, 67 Misc 2d 837 [Sup Ct, Nassau Co 1971] ). In the instant case, it is clear that petitioner did not agree to accept a worthless check ( NY Utility Co., Inc.v Williamsburg Steam Laundry Co., Inc., 187 App Div 110, 114 [2nd Dept 1919] ). Illustrative of this point is Parkgate [*2]Communications Inc., v Peterson, NYLJ 9/6/94, p 32, c 6 ( Dist Ct, Nassau Co Davis, J.), where the court, in a landlord-tenant action, determined that the tenants tender of a check following expiration of the lease, constituted an "illusory" offer of rent, after the check was returned twice for insufficient funds. Under those circumstances, that court determined "petitioner cannot be deemed to have accepted rent"( Id. at p 33, c1 ). Consequently, the court refused to find the creation of a month- to- month tenancy.

In the case at bar, respondents fare no better than a tenant who attempts to prevent a foreclosure or eviction by tendering a check for the full amount owed, which is drawn on an account with insufficient funds, or pays with a counterfeit bank note ( Markle v Hatfield, 2 Johns. 455, Sup Ct Judicature 1807, Kent, J.] ; see also, Wilmot Eng. Co., v Blanchard, 208 App. Div. 218 [ 3rd Dept 1924] ). Under either scenario, no real or actual payment has occurred

( see, Jamaica Sav.Bank v Sutton, 42 AD2d 856 [ 2nd Dept 1973] ). Respondents' reliance on 205 East 78th St. Assocs. v Cassidy, 192 AD2d 479 [1st Dept 1993] rev'g on dissent in App Term, 1st Dept, NYLJ 9/27/91 at 21, cols 4,5 and Roxborough Apt. Corp. v Becker, 176 Misc 2d 503

(Civ Ct, NY Co 1998 [cases cited therein] ) is misplaced , as none of those cases involved the tender of a bad check, nor a counterfeit cash payment.

Accordingly, respondents' motion for summary judgement is denied and the matter is adjourned to Part 52 on 4/24/08 for trial/resolution.

This constitutes the Decision and Order of this Court.

____________________________

Jose A. Padilla, Jr.

Judge of the Civil Court