Strong L.P. v Dakar Rest., Inc.

[*1] Strong L.P. v Dakar Rest., Inc. 2010 NY Slip Op 51304(U) [28 Misc 3d 1213(A)] Decided on June 30, 2010 Civil Court Of The City Of New York, Kings County Ash, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 30, 2010
Civil Court of the City of New York, Kings County

Strong L.P., Petitioner,

against

Dakar Restaurant, Inc. 41-43 Clifton Place Brooklyn, NY 11238, Respondent.



10/K064687



Plaintiff's Attorney:

Christine E. Ellice, Esq., 180 Maiden Lane, NYC 10038 (212) 806-5458

Defendant's Attorney:

Shaw & Associates by Martin Shaw, Esq., 350 Fifth Avenue Suite #2816, New York, NY. (212) 249-4490

Sylvia G. Ash, J.

This is a commercial nonpayment proceeding. The Respondent, Dakar Restaurant, Inc., ("Dakar") moves to dismiss all actions against it for lack of subject matter jurisdiction and personal jurisdiction. The Petitioner, Strong L.P., ("Strong") cross-moves to amend the Petition.

Strong, the owner and landlord of the property located at 41-43 Clifton Place, entered into a commercial lease with Dakar on July 13, 2003, which was amended on September 15, 2003 (collectively the "Lease"). Dakar has not paid any rent since January 2008. Before initiating the present action, Strong served Dakar by personally serving Pierre Thiam, it's owner and President, with a written rent demand (the "Rent Demand") on March 12, 2010. The Rent Demand sought to recover rent due through February 1, 2010, which totaled $104, 159.87, and required payment within ten days of service on. By April 5, 2010, the rent still was not paid, the Petitioner then initiated a petition for a nonpayment proceeding (the "Petition") and drafted a notice of petition which was stamped by the Clerk of the Court with a facsimile of his signature.

On April 13, 2010, Carl Miller, a licensed process server retained by Strong, began the first of six attempts to serve Mr. Thiam with a copy of the Petition. After the sixth unsuccessful attempt, on April 21, 2010, Mr. Miller served the Petition on a part-time bartender employed with Dakar, and informed her that the papers were for Mr. Thiam concerning a pending landlord-tenant Court matter. Mr. Thiam received the copy of the Petition on April 22, 2010. [*2]

In its answer on April 28, 2010, Respondent Dakar makes the following contentions that the Court will now address:

(1) The Rent Demand is defective because it was signed by a representative and not the landlord. It is clear from the signature block that the Rent Demand was signed "Strong, LP, Landlord by Cling Housing Associates, Inc., General Partner" (emphasis added), with Cling Housing Associates ("Cling") signing on behalf of Strong. A rent demand that has a signature that clearly identifies the individual who is making the demand as a partner in the landlord entity is valid and enforceable, (See Doughty Assocs. v. Urban, 2003 NY Slip Op 51302U, 5 (NY Dist. Ct. 2003)). Here, clearly Cling signed the Rent Demand within its capacity as the Petitioner's sole general partner.

(2) The Rent Demand is defective because it did not provide a descriptive reference of the premises as it was described in the Lease. The purpose of the requirement in RPAPL 711(2) that the Rent Demand describe the premises from which removal is sought is so that when the Marshal is executing the warrant of eviction, the premises can be located without any additional information, (See Elul Realty Corp. v. Java NY Ltd., 12 Misc 3d 336, 338 (NY Civ. Ct. 2006), 816 N.Y.S.2d 885, 887 (NY Civ. Ct. 2006)). Here, the premises were described in the Lease as the ground floor and basement and the premises were described in the Rent Demand as the ground floor. The Court finds that the inconsistency between the two documents is insignificant since it is clear that the Respondent had access to and was utilizing the referenced premises in the Rent Demand. Further, a Marshal would have no problem finding and identifying the restaurant in order to enforce the eviction as the description of the premises is not vague or incomplete and there is only one Dakar Restaurant, Inc., at 41-43 Clifton Place in Brooklyn, New York.

(3) The Rent Demand is defective because it was not demanded personally by the landlord, as is stated in the Petition, but by Mr. Miller, the process server. A nonpayment proceeding must be preceded by either a personal demand for rent or service of a written notice providing the tenant with a minimum of three days to pay the rent owed or surrender possession of the premises, RPAPL 711(2). "The written notice must be sufficiently definite and unequivocal to provide adequate notice of the alleged default in rent payment and allow the tenant an opportunity to remedy same and avoid litigation," (See 545 W. Co. v. Schachter, 2007 NY Slip Op 27203, 1 (NY Civ. Ct. 2007), 16 Misc 3d 431, 432 (NY Civ. Ct. 2007)). Here, the Respondent is confusing the requirement that the rent be demanded personally, or orally, with personal service. Even if we use "personally" in its proper interpretation as being made orally, the minor typographical error in the Petition that stated that the Rent Demand was made orally instead of being written does not warrant the action dismissible and render the Petition so fatally incorrect as to deny the Court subject matter and personal jurisdiction. Therefore, the Court finds that the Rent Demand is valid and enforceable.

(4) The action is dismissible for lack of jurisdiction because the lack of a stamp or signature of the Clerk on the Petition fails to show any indication that it was issued by a Judge or Clerk. "Where a petition in a nonpayment summary proceeding omits a properly notarized verification as required by RPAPL 741, dismissal of the Petition as jurisdictionally defective would be too harsh a penalty [*3]since omissions of this nature are minor [clerical] errors, inconsequential in nature, nonprejudicial in substance and correctible at any stage of the proceeding, even on the court's own initiative," (See New York v. Brown, 119 Misc 2d 1054 (NY Civ. Ct. 1982)). Here, the lack of a stamp or signature could be easily remedied at any time by an official of the Court, and will have no significant effect on the essence of the proceedings. In the matter of 239 S. 1st St., LLC v. Ribot, 841 N.Y.S.2d 828 (NY Civ. Ct. 2007), the Court ruled that "papers served in an action [must] conform in all important respects to the papers filed." Based on the above, this Court finds that the copy of the Petition, which lacks the signature of the Clerk of the Court but is correct in every other manner, conforms in all important respects to the actual papers filed, and is therefore admissible.

(5) The Petition is dismissible because it was served on a part-time employee who was not informed that she was being served with process papers or that the papers were for the Respondent. Here, Mr. Thiam was served by Mr. Miller, Petitioner's process server, with the Rent Demand at the restaurant at night. Knowing that Mr. Thiam is usually at the restaurant at night, Mr. Miller decided to serve the Petition on Mr. Thiam around the same time of day that he served the Rent Demand. However, after six unsuccessful attempts to serve Mr. Thiam with the Petition during a time when he was known to be at the restaurant, Mr. Miller then served the copy of the Petition on Respondent's bartender, a part-time employee. "Service may be made on a party who refuses to accept service by leaving the papers in the general vicinity of the person to be served as long as the person being served is aware that he is being served with process," (See 1st Ave. Owners Corp. 6 Misc 3d at 443). In his affidavit, Mr. Miller states that because he was not able to personally serve Mr. Thiam, he left the Petition in an establishment that Mr. Thiam frequented, as he was the owner, with a person with whom Mr. Thiam interacted with, his employee, who was specifically told by Mr. Miller that the papers were for Mr. Thiam and that he was being served with process. Although the Respondent contends that the bartender did not know that she was being served with process papers, no affidavit from the bartender was submitted to establish that fact. Therefore, this court deems that service of process on the Respondent is proper.

Here, the alleged inconsistencies that the Respondent keeps harboring on are not so egregious that they cannot be amended without prejudice to either party. In a summary nonpayment proceeding, a non-substantive error in a petition does not invalidate the action as a whole, (See Zunce v. Rodriguez, 22 Misc 3d 265, 270 (NY Civ. Ct. 2008)). Leave to amend a pleading should freely be given unless the pleading is devoid of merit or is unduly prejudicial to the other party. Petitions in summary proceedings are equivalent to pleadings in any other type of civil case and are equally amendable, (See 1st Ave. Owners Corp. v. Riverwalk Garage Corp., 6 Misc 3d 439, 445 (NY Civ. Ct. 2004); Paikoff v. Harris, 185 Misc 2d 372, 376 (2d Dep't 1999)). Here, the defects in the Rent Demand and the Petition that the Respondent claims warrant a dismissal do not speak to the actual substance and content of the action for unpaid rent, but are mere technicalities, and therefore does not justify a dismissal of the action. Even if the alleged defects in the Petition were amended, the Respondent would still be at fault and would still owe the Petitioner rent.

Therefore, Respondent's motion to dismiss is denied. The Petitioner's motion to amend the Petition to correct the minor typographical error of including the word "personally" in the Rent Demand is [*4]granted.

This matter is sent down for trial on July, 20, 2010 in Part 52. Courtesy copies of this Order is being mailed to the attorney's for the parties.

This constitutes the decision and Order of the Court.

DATED: JUNE 30, 2010____________________________

SYLVIA G. ASH, J.C.C.