Dot & Dan Realty Corp. v Emily'S Deli Inc.
Annotate this CaseDecided on April 6, 2011
District Court Nassau County, First District
Dot & Dan Realty Corp., Petitioner(s),
against
Emily's Deli Inc., Respondent(s).
LT-007033-10
REPRESENTATION:
O'Brien & Manister, P.C. Attorneys for Petitioner, 120 Bethpage Road, Suite 304, Hicksville, New York 11801, 516-942-7801; Law Offices of George M. Gavalas, P.C., Attorneys for Respondent, 200 Old Country Road, Mineola, New York 11501, 516-746-1515.
Scott Fairgrieve, J.
The following named papers numbered 1 to 3
submitted on this Motion
on February 24, 2011
papers numbered
Notice of Motion and Supporting Documents1Order to Show Cause and Supporting Documents
Opposition to Motion2
Reply Papers to Motion3
On July 10, 2004, the petitioner and respondent entered into a lease agreement to commence on August 1, 2004 and terminate on July 31, 2009. The lease agreement terminated on July 31, 2009 and the respondent held over the premises, creating a month-to-month tenancy. The petitioner initiated a holdover proceeding on December 1, 2010. Prior to the commencement of this holdover proceeding, the petitioner attempted to terminate the month-to-month tenancy and requested the respondent to vacate the premises. The petitioner provided a thirty (30) day notice to the President of the respondent corporation stating:
". . . owner and Landlord of the premises known as 160 Denton Avenue, Garden City Park . . . hereby elects to terminate as of NOVEMBER 30, 2010 your monthly tenancy covering the premises occupied by you.
You and all other persons occupying said premises are hereby notified that you are required to quit the same and surrender possession thereof to the undersigned on or before NOVEMBER 30, 2010, the expiration day of your term. [*2]
Upon your failure to remove from the said premises, summary proceedings under the statute to remove you therefrom for the holding over after the expiration of your term will be begun by the undersigned."
The above thirty (30) day notice was sent to the respondent via certified mail to the President of the respondent-corporation. The return receipt signed by the President of the respondent-corporation, is dated October 26, 2010, and a copy of the signed receipt has been provided to the court by the petitioner.
On December 6, 2010, the petitioner commenced this holdover proceeding and served the notice of petition and petition to the President of the respondent, "Joanne Hawwat." An affidavit of service was subsequently filed with the court on December 13, 2010, demonstrating that proper service of the petition was made aforesaid. The respondent thereafter filed a verified answer with the court on December 13, 2010 and asserted several affirmative defenses.
On or about February 10, 2011, the respondent made a motion to dismiss, returnable on February 24, 2011, requesting: dismissal of the petition as '"fatally defective'" due to the defective service of process upon a non-managing agent of the respondent; dismissal of the "non-payment" proceeding based on the petitioner "failing to serve a prerequisite notice to tenant pursuant to the lease agreement"; dismissal of the "petition as fatally defective due to petitioner's failure to annex the prerequisite notice to tenant as part of the petition"; dismissal of the "petition as fatally defective due to" a defective signature by petitioner, and asserts additional claims referenced in this decision.
The motion to dismiss on behalf of the respondent contests the validity of the holdover proceeding commenced by the petitioner. The respondent references a lease agreement due to expire in 2014 throughout the motion, purportedly to demonstrate the invalidity of the holdover proceeding. Despite this contention, no lease agreement expiring in 2014 has been submitted to prove this claim. However, a copy of a lease agreement signed by the President of the respondent-corporation which terminated as of July 31, 2009 has been provided to the court by the petitioner. Thus, due to the fact that the respondent has failed to provide sufficient documentation of the lease said to expire in 2014, the court concludes that this holdover proceeding is proper.
The respondent asserts in the motion that a prerequisite notice to tenant was never served and disputes the proper termination of the tenancy. Despite this assertion, this court determines that this action was properly commenced as a holdover proceeding due to the creation of a month-to-month tenancy. The proper termination of a month-to-month tenancy is achieved by service of a thirty (30) day notice to respondent.
In the case at bar, the thirty (30) day notice was sent to respondent by certified mail, return receipt requested. The return receipt was signed by respondent's President [*3]"Joanne Hawwat" and is the same individual who signed the 2004 lease on behalf of respondent. Service of the thirty (30) day notice by certified mail is proper under Real Property Law § 232-b. See Boland v. Beebe, 186 Misc 616, 62 NYS2d 8 (City Ct, Syracuse 1946), wherein the court upheld service of a thirty (30) day notice by mail:
In my opinion the legislature, when it enacted this section 232-b, intended to permit a more convenient and less formal notice than previously allowed, for the termination of these monthly and month to month tenancies outside of the city of New York. Service by mail, as in the case at bar, is as good as personal service, except that the latter is easier to prove when disputed. An oral notice would be equally good, were it not for the above mentioned Section 6(d)(1) of the OPA Rent Regulation which requires notice in writing.
Thus, service of the thirty (30) day notice upon respondent was done properly in accordance with Real Property Law Sec. 232(b). See also Monaghan v. Kane, 168 Misc 698, 59 NYS2d 892 (County Ct, Erie Cty, 1946), indicating that Real Property Law Sec. 232(b) does not ". . . limit the manner of giving notice to terminate.
Respondent also contends in the motion that the court lacks jurisdiction over the respondent due to improper service of the notice of petition and petition. Previously, respondent filed an answer with this court on February 7, 2011, which failed to assert as an affirmative defense lack of jurisdiction due to improper service. CPLR 3211(e) provides that a party waives the clause of improper service if not asserted in either the answer or motion to dismiss, whichever comes first.
In Wahrhaftig v. Space Design Group, Inc., 29 AD2d 699 (3d Dept 1968), the court held that the defendant waived the right to assert improper service due to defendant's failure to timely raise this affirmative defense either in an answer or CPLR 3211 motion, which ever was served first. The facts show that the respondent raised the affirmative defense of lack of proper service in a motion to dismiss which was served after service of the answer and thus was untimely.
Thus, respondent failed to timely raise the affirmative defense of improper service.
Conclusion
The motion to dismiss is denied in its entirety. All other arguments raised are without merit. This case is set down for trial for April 18, 2011, at 9:30 a.m.
So Ordered:
[*4]/s/ Hon. Scott Fairgrieve
DISTRICT COURT JUDGE
Dated:April 6, 2011
CC:Law Offices of George M. Gavalas, P.C.
O'Brien & Manister, P.C.
SF/mp
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