Price v Roberts

[*1] Price v Roberts 2009 NY Slip Op 52287(U) [25 Misc 3d 1224(A)] Decided on November 12, 2009 District Court Of Nassau County, First District 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 12, 2009
District Court of Nassau County, First District

Clifford Price and STEPHANIE PRICE, Petitioner(s)

against

Ed Roberts a/k/a ED SWISLOSKY and JULIE ROBERTS a/k/a JULIE SWISLOSKY, Respondent(s)



SP 5250/09



Ezratty, Ezratty & Levine, Attorneys for Petitioner, 80 East Old Country Road, Mineola, New York 11501, 516-747-5566; McBreen & Kopko, Attorneys for Respondent, 500 North Broadway, Suite 129, Jericho, New York 11753, 516-364-1095.

Scott Fairgrieve, J.

Respondents move for an order, pursuant to CPLR 3211, dismissing this proceeding on the ground that the petition fails to state a cause of action or, in the alternative, that leave be granted, pursuant to CPLR 404(a) and 3211, to serve and file an answer to the petition. The petitioners oppose this motion and the respondents have served a reply.

The parties entered into a written lease agreement, dated October 2, 2008, for a periodic tenancy commencing November 1, 2008 and continuing on a month to month basis until the Landlord or the Tenant terminates the tenancy. Petitioners commenced this summary proceeding, based on the respondents' failure to pay rent for the period from June 25, 2009 to August 21, 2009, totaling $5344.00 (at $2500 per month) plus $1360 in late charges and $2531 in heating oil charges.

The respondents move for dismissal based, first on the allegation that the petitioners failed to make a proper rent demand and, secondly, on the ground that the purported demand for rent was improperly served and not served on all parties. Finally, the respondents move for dismissal alleging that the petition does not clearly state the amount of rent that is due and how that amount was arrived at.

Proof of a demand for rent is a jurisdictional requisite to maintain a summary proceeding and failing to comply calls for dismissal of the action. St. James Court LLC v. [*2]Booker, 176 Misc 2d 693, 673 NYS2d 821 (Civ Ct, Kings County 1998).

Respondents allege that no demand was made for payment of rent prior to the commencement of the action. Petitioners allege that on July 21, 2009, a written demand for rent due and a notice to vacate the premises was served by the petitioners' counsel on the respondents. However, no affidavit of service is attached to show service was done in accordance with statute.

A summary proceeding is a special proceeding governed entirely by statute and there must be strict compliance with the statutory requirements to give the court jurisdiction. Gonzalez v. Peterson, 177 Misc 2d 940, 678 NYS2d 855 (NY App Term, 1998) aff'd 258 AD2d 298, 685 NYS2d 197 (1st Dept. 1999). RPAPL §711(2) requires that a written rent notice be served in accordance with RPAPL §735.

RPAPL §735(1) states, in pertinent part, that:

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.

As the petitioner failed to serve the rent notice in accordance with RPAPL §735,the demand for rent was legally insufficient. Accordingly, the respondents' motion is granted

and the petition is hereby dismissed.

So Ordered:

/s/

DISTRICT COURT JUDGE

Dated:November 12, 2009

CC:Ezratty, Ezratty & Levine

McBreen & Kopko [*3]

SF/mp