Service Sta. Realty Corp. v RMAK Corp.
Annotate this CaseDecided on December 23, 2010
District Court of Nassau County, First District
Service Station Realty Corp., Petitioner(s)
against
RMAK Corp., Respondent(s)
LT-005797-10
Ezratty, Ezratty & Levine, Attorneys for Respondent, 80 East Old Country Road, Mineola,, New York 11501, 516-747-5566; Darrell J. Conway, P.C., Attorneys for Petitioner, 179 Little East Neck Road, Babylon, New York 11704, 516-669-0001
Scott Fairgrieve, J.
In this holdover proceeding, arising from a commercial lease signed by the
parties on or about February 9, 2009, the petitioner, Service Station Realty Corporation, seeks to
recover possession of the property located at 3880 Long Beach Road, Island Park, New York, as
well as rent and related costs in the amount of $33,749.00 with interest, from September 1, 2010
from the respondent, RMAK Corporation.
Respondent now moves for an order pursuant to CPLR §3211(f) and 404(a), dismissing the petition based on a jurisdictional defect, or, in the alternative, for leave to serve and file an answer to the petition. Petitioner opposes this motion and the respondent has filed a reply.
The parties agree that they entered into a written rental agreement starting January 15, 2009 and ending December 31, 2018. The petition alleges that the term for which the premises was rented expired on September 1, 2010 and that the respondent has continued in possession of the premises without permission of the landlord. [*2]
The respondent maintains that the petitioner alleges that a termination notice was given, however, no such notice with the affidavit of service was annexed to the petition. Further, respondent acknowledges that it was mailed a document entitled Notice Of Termination, dated August 20, 2010, which stated that the lease would be terminated on September 1, 2010. Said notice, respondent posits, was not served in accordance with the terms of the lease, annexed to the petition with an affidavit of service, nor did it provide the 30 days notice as stated in the petition. In addition, it does not establish who served the notice, how it was served, what the notice said, and that the jurisdictional prerequisites were complied with. Therefore, the respondent asserts that since the petitioner has not established it properly served a legally sufficient termination notice, this court does not have jurisdiction over this matter.
In opposition to this motion, petitioner's counsel contends that a notice to cure, which was signed by the landlord on August 6, 2010, was mailed by counsel on August 6, 2010, by certified mail, return receipt requested. The notice of termination was served on August 20, 2010, by delivering same to the post office in a stamped envelope addressed to the tenant. Accordingly, counsel avers the notice complied with the terms of the lease.
Petitioner's counsel also contends that the lease provides that if the landlord gives the five day notice of termination, that at the expiration of said period, the lease shall terminate completely. Since the notice to terminate provided for termination on September 1, 2010, eleven days after the notice, it is in compliance with the lease. Lastly, it is counsel's position that there is no legal basis for a termination of petition, based upon petitioner's failure to annex the notices to the petition.
Upon a review of the papers before it, the Court finds that the petition must be dismissed as jurisdictionally defective.
To terminate a tenancy at a time other than at the end of a definite term, a landlord must properly serve all the required predicate notices, including any notices to cure and notices of termination. Additionally, as stated in Rasch's Landlord & Tenant including Summary Proceedings, Section 41;25 entitled "Alleging Service of Required Notice":
Where a notice is required to be given prior to the commencement of a summary proceeding the petition must show that it has been duly given. Failure to allege these facts renders the petition jurisdictionally defective.
This Court has held in Higbie v. Ripka, 2002 NY Slip Op 50018U that, " The petition should state that the termination notice was served upon the tenant and the facts regarding service or, in the alternative, at least provide same to the Court with the pleadings."
The petition presently before the Court alleges that:
At least 30 days before the expiration of the said term the respondent tenant was served in [*3]the manner provided for by law with a notice in writing, a copy of which with proof of service is hereto annexed and made a part of this petition, that the landlord elected to terminate the said tenancy and that unless the said tenant removed from said premises on the day on which said term expired the landlord would commence summary proceedings under the statute to remove said tenant therefrom.
An examination of the notice of petition and petition reveals that the notice to cure, the notice to terminate, and their affidavits of service have not been attached to the petition. The Court has been informed through the motion papers that petitioner's counsel mailed the notice to cure on August 6, 2010(Affirmation in opposition ¶3). Then the notice of termination was served on August 20, 2010, by delivering same to the post office in a stamped envelope addressed to the tenant, after the expiration of the five day period to cure, plus an additional nine days (Affirmation in opposition ¶4). Counsel's statements contradict the information listed in the petition.
Pursuant to the lease, a notice of termination was required. Therefore, service of the notice is a jurisdictional prerequisite to a summary proceeding; if the tenancy has not been properly terminated, the Court has no jurisdiction to proceed and the petition should be dismissed (Chinatown Apartments, Inc v. Chu Cho Lam, 51 NY2d 786 [1980]). Here the petitioner has not established that it prepared and properly served a legally sufficient termination notice.
In light of the above, the respondent's motion is granted and the petition is dismissed. Hence, the Court need not address the merits of the respondent's remaining contentions.
So Ordered:
/s/ Hon. Scott Fairgrieve
DISTRICT COURT JUDGE
Dated:December 23, 2010
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