Great Neck Terrace Ltd. Liab. Co. v Regina

[*1] Great Neck Terrace Ltd. Liab. Co. v Regina 2010 NY Slip Op 50114(U) [26 Misc 3d 1217(A)] Decided on February 2, 2010 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 2, 2010
District Court of Nassau County, First District

Great Neck Terrace Limited Liability Company, Petitioner(s)

against

Vivian Regina, "JOHN DOE" and "JANE DOE", Respondent(s)



SP 005938/09



Kucker & Bruh, LLP, Attorneys for Petitioner, 747 Third Avenue, New York, New York 10017, 212-869-5030; Nassau/Suffolk Law Services, Committee Inc., Attorney for Respondent, One Helen Keller Way, 5th Floor, Hempstead, New York 11550, 516-292-8100.

Scott Fairgrieve, J.

Petitioner has commenced this residential holdover proceeding to evict Respondent from 18 Terrace Circle, Apartment 9C, Great Neck, New York 11021. This is a chronic non-payment case, as demonstrated by the previous eight (8) non-payment proceedings against Respondent: August 2009, March 2009, May 2008, August 2007, March 2007, November 2006, February 2006, and September 2005.

In the instant case, a stipulation of settlement was signed on November 3, 2009, requiring Respondent to tender to Petitioner $2,256.03 "within one week of the execution of this stipulation of settlement."

Respondent tendered a personal check to Petitioner in the amount of $2,256.03 on November 11, 2009, eight (8) calendar days after execution of the stipulation of settlement. The check was postdated November 17, 2009, fourteen (14) calendar days after execution of the stipulation of settlement. In addition, Respondent requested, in a hand written note, that Petitioner not cash the check until November 17, 2009.

According to 170 NY Properties LLC v. Kimberly Boynton (19 Misc 3d 1108(A), 2008 WL 786482 (N.Y.City Civ.Ct.)), a postdated check has the following attribute:

By delivering (a) check that (was) post dated, Respondent was not making payment, but [*2]essentially was offering a promise of payment at a later date. This was not an agreed upon term of the stipulation.

And in Bay Shore Check Cashing Corp. v. Landscapes by Northeast Construction Corp., d/b/a Coastal Designs (3 Misc 3d 475, 776 NYS2d 742) the District Court, Suffolk County held that:

(A) post-dated check was not a negotiable instrument, and its holder could not be a holder in due course until after the date on the check had been reached.

80 NY Jur. 2d Negotiable Instruments, Etc. §53 states that "When an instrument is antedated or postdated, the time when it is payable is determined by the stated date if the instrument is payable on demand or at a fixed period after date." Additionally, 9 NY Jur. 2d Banks §358 states that "Under the common-law rule, a postdated check is payable on or after the day it is dated. A bank should not pay it before such date, and if it does it will be liable to the depositor..."

Respondent violated the stipulation of settlement by not making timely payment. Further, Respondent's counsel, in his Conclusions of Law and Argument states that the court should excuse a de minimis breach of the terms of the stipulation. However, in the context of a chronic non-payment case, repeated breaches of the covenant to timely pay rent are not de minimis, and instead are the very reason these proceedings were brought against Respondent. (Fifty States Mgt. Corp. v. Pioneer Auto Parks, supra at 575, 415 NYS2d 800, 389 NE2d 113 ; Cyber Land Inc. v. Chon Property Corp. 36 AD3d 748, 830 NYS2d 198)

CONCLUSION

This Court has reviewed the facts of the case and finds that Respondent breached the terms of the stipulation. Thus, Petitioner is awarded a final judgment of possession. The warrant of eviction shall issue forthwith.

So Ordered:

/s/

DISTRICT COURT JUDGE

Dated:February 2, 2010

CC:Kucker & Bruh, LLP

Nassau/Suffolk Law Services Committee, Inc.

SF/mp