Retail Prop. Trust v Charles David of Cal.
Annotate this CaseDecided on September 9, 2013
District Court of Nassau County, First District
The Retail Property Trust, a Massachusetts Business Trust, Petitioner(s)
against
Charles David of California, Respondent(s).
LT-003782-13
Forchelli, Curto, Deegan, Schwartz, Mineo & Terrana, LLP, Attorneys for Petitioner, The Omni, 333 Earle Ovington Boulevard, Suite 1010, Uniondale, New York, 11553, 516-248-1700; Frenkel, Lambert, Weiss, Weisman & Gordon, LLP, Attorneys for Respondent,20 West Main Street, Bay Shore, New York 11706, 631-969-3100.
Scott Fairgrieve, J.
The petitioner commenced this commercial Landlord/Tenant non-payment proceeding on July 10, 2013 by the service of a Notice of Petition and Petition to recover possession of the premises located in Roosevelt Field Mall, Room 1101 at 630 Old Country Road, Garden City, NY 11530. The petitioner seeks a money judgment in the sum of $60,950.25, plus an award of attorney's fees pursuant to the written lease, plus costs and disbursements of this action. Since the time this proceeding was initiated, Tenant has vacated the premises.
The respondent moves for an order pursuant to CPLR § 3212 dismissing this proceeding with prejudice upon the grounds that (1) the three-day demand for rent served upon the respondent is insufficient notice pursuant to the terms of the lease under "Article XVIII, Tenant's Default;" (2) the three-day notice and ten-day notice that petitioner served are both defective, and; (3) since respondent has surrendered possession, there is no basis for the commencement of a subsequent summary [*2]proceeding. The petitioner opposes the instant motion. The respondent filed a Reply.
RPAPL § 711(2) governs the procedures for a demand for rent. It states, in pertinent part, as follows: A special proceeding may be maintained under this article upon the following grounds:(2) the tenant has defaulted in the payment of rent, pursuant to the agreement under which the premises are held, and a demand of the rent has been made, or at least three days' notice in writing requiring, in the alternative, the payment of rent, or possession of the premises, has been served upon him as prescribed in section 735 . . .
A statutory rent demand is one of the facts upon which a special proceeding is based (see RPAPL § 741[4]; Garvey v. Calder, 7 Misc 3d 130[A] [App. Term, 9th & 10th Jud Dists 2005]). The jurisdiction of the court in a summary nonpayment proceeding depends upon strict compliance with the applicable statutory requirements. (13A Carmody-Wait 2d § 90:47) A lease provision providing for greater than the statutory minimum of three days written notice will supersede the latter's time frame and necessitate lengthening the demand period. (Finkelstein and Ferrara, Landlord and Tenant Practice in New York, § 14:44).
Respondent alleges that Paragraph 18.1, "Right to Re-Enter" of the Lease applies, and therefore ten-day notice is required under the terms of the lease. Petitioner responds that the language of Paragraph 18.1, "Right to Re-Enter," of the Lease only applies to a holdover proceeding, and not for a non-payment proceeding.
Article XVIII, "Default by Tenant," Paragraph 18.1, "Right to Re-Enter" of the Lease states: "The following shall be considered for all purposes to be defaults under and breaches of this Lease: (a) any failure of tenant to pay any rent or other amount when due hereunder for more than ten (10) days after written notice that the same is past due " (emphasis added).
In Reckson Operating Partnership, tenant moved to dismiss the petition arguing that the landlord was required under the terms of the lease, "Event of Default" to serve [*3]a 10-day notice of default as a condition precedent to maintaining the proceeding. (Reckson Operating Partnership v. LJC Corp., 17 Misc 3d 138(A) at *1, 856 N.Y.S.2d 26 [App. Term, 9th & 10th Jud Dists 2007]).It was held that the language of the lease that required the 10-day notice provision was a condition precedent to a termination of the lease and commencement of a holdover proceeding, not as a condition precedent to the maintenance of a nonpayment proceeding. Id.
In contrast is the case of Hendrickson where the lease expressly stated that service of a ten-day notice was required before commencement of "any proceeding." Hendrickson v. Lexington Oil Co., Inc., 41 AD2d 672, 672, 340 N.Y.S.2d 963 [App Div. 1973].Thus, service of the ten-day notice was required before commencement of a non-payment proceeding. Id.
In the case at bar, this court holds that the rationale of Reckson applies to the facts of this case. The lease in the instant case did not specify a notice period for commencing a nonpayment proceeding. Thus, Petitioner properly served the three-day rent demand pursuant to RPAPL § 711(2) upon Respondent by personal service and by certified mail of same to the managing agent and by first class and certified mail to the tenant in California.
Respondent also alleges that petitioner should be afforded an additional five days notice for mailing the tenant in California, pursuant to the five-day mailing extension granted in Wing Lee Realty Inc. (Wing Lee Realty Inc. v. Man Yee Yon, 806 N.Y.S.2d 449 [Civ.Ct.N.Y.Co. 2005]). It should be noted that the case cited by respondent, Wing Lee Realty Inc., applies to a rent-regulated apartment and is therefore not factually similar to the facts at hand. The five-day mailing extension does not apply to commercial cases which is the situation in the case at bar. (RPS Greenvale Realty, LLC v. Rosa's of Roslyn, Inc., 18 Misc 3d 1145[A], 2008 WL 623830 at *3 [N.Y.DIst.Ct. 2008]).
Respondent also argues that petitioner failed to serve three-day rent demand pursuant to terms of the lease, and therefore the demand was deficient. This court holds that the notice provision outlined in the lease does not apply to notices in a non-payment proceeding. In Four Star Holding Co., it was held that statutory procedure for notice applied and the general notice provision in the lease did not apply to rent demands because the lease did not specifically reference rent demands or RPAPL § 711. (Four Star Holding Co. v. Alex Furs, Inc., 153 Misc 2d 447, 448, 590 N.Y.S.2d 667 [App. Term, 1st Dep't 1992]).
The lease in the instant case is similar to Four Star Holding because the lease does not describe a notice procedure that should be followed in the event of a nonpayment proceeding or specifically reference RPAPL § 711. Therefore, the statutory procedure applies and no requirement of serving Respondent's attorney is required under the statute.
It should also be noted that petitioner did not only adhere to the minimum statutory requirements, but gave additional notice to respondent that were not statutorily required. A month prior to the service of the 3-day rent demand, petitioner also served the respondent's attorney a ten-day demand via federal express mail, which is not statutorily required and respondent does not deny receiving. Therefore, the notices provided to respondent in this case are more than sufficient.
The court rejects the other arguments made by respondent as without merit.
In view of the foregoing, the respondent's motion to dismiss is hereby denied. This case is set down for trial on October 3, 2013 at 9:30 A.M.
This constitutes a decision and order of the Court.
So Ordered:
/s/ Hon. Scott Fairgrieve
DISTRICT COURT JUDGE
Dated:September 9, 2013
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