Santanastasio v Denoto

[*1] Santanastasio v Denoto 2010 NY Slip Op 51366(U) [28 Misc 3d 1216(A)] Decided on July 29, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 29, 2010
District Court of Nassau County, First District

Thomas Santanastasio, Petitioner(s)

against

Florence Denoto a/k/a FLORENCE DINOTO, Respondent(s)



SP 002949/10



Law Offices Gerald N. Daffner, Attorneys for Petitioner, 215 Hilton Avenue, P.O. Box 1200, Hempstead, New York 11551-1200, 516-538-2400; Nassau/Suffolk Law Services Committee, Inc., Attorneys for Respondents, One Helen Keller Way, Hempstead, New York 11550, 516-292-8100.

Scott Fairgrieve, J.

Respondent moves for an order to dismiss pursuant to CPLR §§ 404 and 3211(a)(2) due to failure to comply with Real Property Law §232-b. Petitioner has filed an affirmation in opposition to the motion to dismiss. In response Respondent has filed a reply affirmation in support of the motion to dismiss with regards to this matter.

The facts of this case are as follows. The respondent, Florence DeNoto, is a month-to-month tenant renting an oversized room in 146 Acre Lane, Hicksville, New York. An oral lease calls for a monthly payment of $750, or $175 weekly, per Ms. Denoto's wishes. On March 16, 2010 Ms. DeNoto signed a confession of judgment awarding the owner Petitioner, Thomas Santanastasio, $6,100 in unpaid rent. Both parties signed a stipulation of settlement on March 17, 2010, which states the Petitioner will not file the signed confession of judgment if respondent pays $175 weekly. Additionally, Respondent was to actively pursue another residence and was to move out no later than June 29, 2010. If payments were not made, Petitioner was to give Respondent signed notice of default and would file the signed confession of judgment. Mr. Santanastasio filed the holdover petition on May 18, 2010 and looks to collect the $6,100 agreed upon in the aforementioned confession of judgment pursuant to the stipulation of settlement.

Respondent's Motion to Dismiss states that a copy of the alleged Notice of Default was not attached to the Petition received by the tenant and the Confession of Judgment fails to meet the requirements of the CPLR §3218. In addition, Respondent asserts that this Confession of Judgment may not qualify as a notice of termination because it fails to comply with RPL §232-b. Respondent also maintains that the Stipulation of Settlement does not provide the Petitioner with standing to bring this holdover proceeding because the proceeding was commenced prior to the June 29, 2010 date the stipulation states the tenant will move out. Finally, the court does not have jurisdiction because to terminate a month-to-month tenancy the expiration of the lease must [*2]occur on the last day of the rental term.

Petitioner's Affirmation in Opposition to the Motion to Dismiss contains documents upon which Petitioner claims there is a dispute in the facts set forth in the Motion to Dismiss. The annexed documents consist of the Notice of Petition, Petition, Confession of Judgment, Stipulation of Settlement Agreement, Petitioner's Affidavit in Opposition, a prior proceeding initiated pro se by the Petitioner, and prior notices served on respondent by the petitioner.

The annexed exhibits do not qualify as factual proof that can nullify the claims made in the Motion to Dismiss. The Confession of judgment does not comply with the required elements as provided in the statute, CPLR §3218(a)(2) which states, "if the judgment to be confessed is for money due or to become due, stating concisely the facts out of which the debt arose and showing that the sum confessed is justly due or to become due." The confession of judgment lacks a full statement of the facts. Although a statement of facts required for a confession of judgment is only required to meet the standard set forth for pleadings, the confession of judgment fails to set forth a full statement of the facts. This distinction as to what necessarily qualifies as a concise statement of facts is addressed in Baehre v Rochester Dental Prosthetics (112 Misc 2d 270, 272, 446 N.Y.S2d 901), which states:

Among other things, CPLR 3218 requires a concise statement of the underlying facts in every confession of judgment for an amount due or to become due in order that third persons (notably other creditors) may ascertain whether the confession was accurate, honest and bona fide (see Country Nat. Bank v Vogt, 28 AD2d 793, affd21 NY2d 800; Wood v Mitchell, 117 NY 439; 4 Weinstein-Korn-Miller, NY Civ Prac, par 3218.03). Consequently, every such statement must contain enough detail to permit other creditors "to discern a complete picture of the transaction from the affidavit itself, sufficient to enable them to investigate the claim and ascertain its validity." (Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3218:9, p 1041; accord Princeton Bank & Trust Co. v Berley, 57 AD2d 348.)

The statement of facts in the subject confession of judgment provides as follows: "[A] debt is justly due to the Plaintiff arising out of the following Oral Lease agreement for rooms at the subject premises." This statement is clearly deficient. The subject area which is being rented consists of one oversized room as described in the Petition; therefore, the facts are not accurate. Furthermore, this statement fails to provide a complete picture of the transaction because it does not set forth important terms of the agreement such as the when payments are to be made, the amount and the anniversary date.

The other issue at hand in this action is the existence and validity of any 30-day notice to terminate served upon the respondent. The stipulation of settlement signed by both parties clearly states that, "In the event payment is not made then both parties agree that TJS (Thomas J. Santanastasio) will give FD (Florence DeNoto aka Florence DiNoto) written notice of default " Given that this holdover proceeding was filed on June 16, 2010 it must follow, as per the stipulation, that the respondent had not paid in accordance with the agreed upon payment schedule, and that the petitioner must give respondent a written notice of default. Petitioner has not presented any valid, written notice of default to this court that would satisfy this aspect of the aforementioned stipulation of settlement.

In addition, Respondent's Motion to Dismiss is granted for Petitioner's failure to provide a 30-day notice. Both the previously submitted 30-day notices to terminate annexed to Petitioner's [*3]Opposition to Motion to Dismiss are defective in so far as they fail to meet the statutory requirements. The vacate date was not 30 days subsequent to the date the notice was signed, rather, it was 11 months prior. Also, the stipulation of settlement does not qualify as a 30-day notice. A 30-day notice is required to terminate a month-to-month tenancy outside the City of New York (RPL §232-b, see also Sills v. Dellavalle, 3rd Dept. 2004, 9 AD3d 561; Ferro v. Lawrence, App. Term, 9th & 10th Jud. Dists. 2002, 195 Misc 2d 529, 758 N.Y.S.2d 460.)

Respondent's Motion to Dismiss is granted upon three grounds: (1) Petitioner failed to provide a valid Notice of Default as per the terms of the stipulation of settlement, (2) the submitted confession of judgment is in violation of CPLR §3218(a)(2), (3) and Petitioner failed to provide a proper 30-day notice of termination.

So Ordered:

/s/ Hon. Scott Fairgrieve

DISTRICT COURT JUDGE

Dated:July 29, 2010

CC:Nassau/Suffolk Law Services Committee, Inc.

Law Offices of Gerald N. Daffner

SF/mp