Davidson v Myers

[*1] Davidson v Myers 2019 NY Slip Op 50075(U) Decided on January 22, 2019 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 22, 2019
District Court of Nassau County, First District

Yosef Davidson aka JOSEF DAVIDSON, Petitioners,

against

Daniel Myers, DALIAH WALFISH MYERS, "JOHN DOE," "JANE DOE," Respondents.



LT-005007-18NA



Cynthia M. Burke, Esq., attorney for Petitioner, 591 Stewart Avenue, 4th Floor, Garden City, New York 11530, (516) 833-5135; Jonathan A. Stein, P.C., attorneys for Respondents Daniel Myers and Daliah Walfish Myers, 132 Spruce Street, Cedarhurst, New York 11516-1915, (516) 295-0956.
Scott Fairgrieve, J.

The following named papers numbered 1 to 3 submitted on this Motion to Dismiss on November 15, 2018

papers/numbered

Notice of Motion and Supporting Documents 1

Order to Show Cause and Supporting Documents

Opposition to Motion 2

Reply Papers to Motion 3

The petitioner commenced this non-payment proceeding on September 12, 2018, by the service of a Notice of Petition and Petition to recover possession of the premises located at 34 Briarwood Lane, Lawrence, New York, 11559. The petition seeks a final judgment of possession, warrant of eviction and money judgment in the sum of $32,207.67, fair value of use and occupancy, an award of attorney's fees, plus costs and disbursements.

Initially, respondents' counsel moves for an order dismissing the petition on the ground that the rent demands were insufficient and defective. The parties at bar, are subject to a written lease agreement entered into on April 11, 2018, between Josef Davidson (Landlord) and Daniel and Daliah Walfish Myers (Tenants). The term of the lease is from May 1, 2018, to April 30, 2019, with monthly rent of $5,000.00 dollars. In addition, pursuant to Paragraph 6 of the lease, respondents were obligated to pay for: gas, electric, telephone, alarm, cable, pest exterminations, water, heat, oil, landscaping and snow removal.

According to the petitioner, the respondents have not paid any rent or added rent whatsoever from the lease's inception. As such, the petition seeks rent from May 1, 2018, through October 1, 2018 plus payment of outstanding utilities bills, and late fees thereon. The petition [*2]also requests $10,000.00 as "accelerated rent" as per Paragraph 3 of the lease.

Initially, the respondents claim that the demand for rent here was defective. A statutory rent demand is governed by RPAPL §711(2). It provides:

"A special proceeding may be maintained under this article upon the following grounds: "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 the rent, or the 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]). Absent proof of a verbal demand or a proper three day written demand a nonpayment proceeding is jurisdictionally defective and must be dismissed (see Matter of Salvatore and Catherine Pepe v Miller & Miller Consulting Actuaries, 221 AD2d 545 [2d Dept 1995]). A landlord must in the first instance both allege and prove that s/he has complied with the statutory conditions in order to become entitled to possession (see Solack Estates, Inc. v Goodman, 102 Misc 2d 504 [App Term, 1st Dept 1979]; Martine Associates LLC v Minck, 5 Misc 3d 61 [App Term, 2d Dept 2004]; Sycamore Associates, Inc. v Dietz, 8 Misc 3d 132 [A] [App, Term 9th & 10th Jud Dists 2005]).

The purpose of the demand requirement is to afford a tenant notice so that he or she may be able to remedy the default and prevent litigation (see 1675 Realty Co. v Quinones, 576 NYS2d 995 [Civ Ct, Bronx County 1991]). At a minimum, the landlord must inform the tenant of the particular period for which the rent is in default and the approximate good-faith sum of rent due (see Ranallo v Burns, 550 NYS2d 192 [3rd Dept 1990]).

In the case at bar, Paragraph 6 of the petition alleges:

"Rent has been demanded personally from the tenant since the same became due."

Respondents' counsel argues that merely alleging that rent has been demanded personally, in a conclusory fashion without more, is insufficient for pleading purposes. The court flatly rejects this argument (see Sella Properties v DeLeon, 25 Misc 3d 85 [App Term, 2d Dept 2009]; Kulok v Riddim Company, 185 Misc 2d 195 [2000]; Merida v Morosoff, 51 Misc 3d 1209(A) [Nassau Dist Ct 2016]). Thus, the petition is not defective on its face. Accordingly, dismissal on this basis is denied.

Next, counsel challenges the sufficiency of the written demand sent by the petitioner's attorney. A written demand was made by petitioner's counsel on June 29, 2018, addressed to a "Ms. Walfish Myers" (see Respondents' Exhibit D). The demand letter, which alleges to have been by mailed by "Certified Mail-RRR & Regular Mail", provides:

"Please be advised that I represent Josef Davidson, your landlord, with respect to your tenancy at 34 Briarwood Lane, Lawrence, NY 11559. My client has indicated that you are in arrears of rent and added rent in the amount of $11,299.41 through June 1, 2018. It is [*3]now imperative that you bring your account current, so as to avoid the termination of your lease, an eviction proceeding, and the obtaining of a Judgment.PLEASE TAKE NOTICE THAT IF YOU DO NOT MAKE PAYMENT IN FULL WITHIN FIVE DAYS OF RECEIPT OF THIS NOTICE, THE LANDLORD WILL TAKE SUCH STEPS AS ARE NECESSARY TO TERMINATE YOUR LEASE, AND TAKE SUCH OTHER ACTION AS IS NECESSARY, INCLUDING THE BRINGING OF AN EVICTION PROCEEDING, AND THE OBTAINING OF A JUDGMENT AGAINST YOU FOR ALL THE AMOUNTS DUE UNDER THE LEASE. IN THAT EVENT, YOU WILL CONTINUE TO BE RESPONSIBLE FOR RENT, EXPENSES, DAMAGES AND LOSSES."

Relying upon Siegel v Kentucky Fried Chicken, 67 NY2d 792 (1986), the respondents argue that the notice sent by counsel was defective, since the tenants had no prior dealings with counsel and because it was not authorized under the lease. The court disagrees. Paragraph 4 of the instant lease, entitled "Notices" provides:

"Landlord agrees to send all notices to Tenant in writing by regular mail or certified mail, or to deliver in person. If tenant is not home, Landlord or Landlord's representative will place the notice on the leased property in an easy to see location" (emphasis added).

Thus, the lease authorizes "all notices", such as the demand letter in this case, to be given by the landlord or the landlord's representative. Accordingly, the rent demand sent by petitioner's counsel was valid. As such, dismissal of the petition on this basis is also denied.

Next, the respondents maintain that the rent demands alleged to have been left on the property by the petitioner himself and sent via email, are insufficient. The affidavit of petitioner Davidson, states:

"Demands for rent were sent personally by me by various methods. As can be seen from Exhibit A annexed hereto, demands for rent were sent on a monthly basis, along with a summary of the total amount then due. They were delivered each month to the premises, and after knocking, if no one answered, they would be left between the glass and inner door, a conspicuous place, as per the Lease. See paragraph 4(a) of the Lease annexed to Respondent's motion, Exhibit A. In addition, at Respondent's request, each monthly invoice was sent to the email address provided by the respondent."

Attached as Exhibit A to the Davidson affidavit are seven (7) "Statements" dated May 1, 2018, through August 1, 2018, detailing the amount of outstanding rent and added rent. In view thereof, the court rejects the respondents' claim that a proper demand for rent was not made. The court finds that the respondents were more than adequately afforded notice so that they would be able to remedy the default and prevent litigation. Moreover, the notices were sufficiently detailed so as to give them the approximate good-faith sum of rent due. Accordingly, dismissal upon this ground is denied as well.

The court further rejects, as irrelevant, respondents' counsels' interpretation of Paragraph [*4]19(A) of the lease, as containing a requirement that any notice shall be in writing. Suffice it to say that it is uncontested that the subject notices were written.

Next, respondents move to dismiss the petition upon a lack of personal jurisdiction. "The [petitioner] bears the ultimate burden of proving by a preponderance of the evidence that jurisdiction over the defendant was obtained by proper service of process" (Frankel v Schilling, 149 AD2d 657, 659 [2d Dept 1989]; see also Banker Trust Company of California, N.A. v Tsoukas, 303 AD2d 343 [2d Dept 2003]). The process server's affidavit constitutes prima facie evidence of proper service (see C & H Import & Export, Inc., v MNA Global, Inc., 79 AD3d 784 [2d Dept 2010]; Roberts v Anka, 45 AD3d 752 [2d Dept 2007]). "Even if a defendant eventually acquires actual notice of the lawsuit, actual notice alone will not sustain the service or subject a person to the court's jurisdiction when there has not been compliance with prescribed conditions of service" (Banker Trust Company of California, N.A. v Tsoukas, 303 AD2d 343, 344 [2d Dept 2003]).

In the case at bar, the respondents have adequately raised an issue of fact as to whether the court has obtained personal jurisdiction over them. Accordingly, a Traverse hearing is necessary to determine this issue.

Given the foregoing, respondents' motion is granted only to the extent that a Traverse hearing will be conducted. The parties are directed to appear for said hearing to be held at the First District Court, 99 Main Street, Landlord/Tenant Part, Room 280, Hempstead, New York on the 25th day of February, 2019 at 9:30 a.m.

If the court finds jurisdiction over respondents, it will then determine any remaining issues.

This constitutes the decision and order of the court.

/s/ Hon. Scott Fairgrieve

DISTRICT COURT JUDGE

Dated: January 22, 2019