The following named papers numbered 1 to 5

submitted on this Motion on September 25, 2013

papers numbered

Notice of Motion and Supporting Documents1Memorandum of Law in Support of Motion2

Notice of Cross Motion and Supporting Documents3

Opposition to Cross Motion & in Support of Motion4

Reply Affirmation in Support of Cross Motion5

Petitioner HMH Restaurants commenced this holdover proceeding against Respondent Mio Posto of Hicksville, LLC, to recover the possession of 600 W. Old Country Road, Hicksville, New York. Petitioner alleges in paragraph 6 that Respondent entered into possession under the following circumstances: [*2]

Respondent-Tenant entered into possession of the premises described below under a written sublease dated May 23, 1994 between Marriott Family Restaurants, Inc., the predecessor-in-interest to HMH Restaurants LP and TSR/Hicksville, Inc. ("TSR"), as subsequently assigned pursuant to an Assignment and Assumption of Sublease and Indemnification Agreement dated December 1, 2011 between TSR, Mio Posto of Hicksville, LLC and HMH Restaurants LP (the "Lease") and continued therein pursuant to the Lease unless sooner terminated.

Petitioner sent the Notice of Termination, dated July 19, 2013, terminating the sublease as of July 29, 2013. The basis for the termination of the sublease states as follows:

PLEASE TAKE NOTICE, that pursuant to Article "18" of the Lease, Mio Posto of Hicksville, LLC, Inc. (hereinafter "Tenant") covenanted that if Tenant, on two (2) or more occasions within any twelve (12) month period, shall fail to pay HMH Restaurants, LP (hereinafter "Landlord") the full amount of any Minimum Rent, Percentage Rent or additional rent payable under the Lease by Tenant to Landlord by the tenth (10th) day following the date upon which the same becomes due, then, upon the occurrence of said event, Landlord may at any time thereafter elect to give to Tenant a notice declaring the term of the Lease terminated, and upon the giving of such notice, the Lease and the term and the estate thereunder shall expire and be deemed terminated.

PLEASE TAKE FURTHER NOTICE, that the Tenant has violated and continues to violate a substantial obligation of its tenancy at the Premises pursuant to the terms of the Lease in that, in violation of Article "18" of the Lease, which is substantial and material covenant, term and condition of the Lease, Tenant has failed to pay to Landlord the full amount of Minimum Rent, Percentage Rent, and/or Additional Rent by the tenth (10th) day following the date upon which the Minimum Rent, Percentage Rent and/or Additional Rent became due for the months of January 2013, February 2013, March 2013, April 2013, May 2013, June 2013, and July 2013.

Respondent, Mio Posto of Hicksville, LLC, moves for an order dismissing the within petition, on the grounds that the same is defective for failing to comply with statutory provisions and applicable Sublease provisions. Petitioner contends that the letters sent by a consultant to the Sublandlord, a party not named in this action, constituted valid notices to cure. Respondent argues that such letters were deficient because they were not properly sent to all parties named in the lease provision and the sender was not legally authorized to send such notice.

Article 18 of the Sublease states, in pertinent part, as follows:

If (ii) Subtenant defaults in the payment of any installment of Minimum Rent, Percentage Rate, or additional rent due hereunder, and such default continues for [*3]ten (10) days after written notice thereof to Subtenant (provided that if Subtenant is in such default two (2) or more times beyond the ten (10) day cure period within any twelve (12) month period, then no opportunity to correct need to be given)

Pursuant to the terms of the Sublease, Petitioner could terminate the lease without providing the Respondent an opportunity to correct only if Petitioner had served at least two ten-day notices twice in a twelve-month period, and Respondent failed to cure such defaults at least twice in a twelve-month period, within the ten-day cure period.

In Midco Nowash LLC v. #1 Travel Inc., et al., Petitioner served a Notice of Default upon the Respondent, but Respondent cured the defaults within the allotted time. (See Midco Nowash LLC v. #1 Travel Inc., et al, 29 Misc 3d 254, 905 N.Y.S.2d 765, at 776 [Nassau Dist Ct 2010]). When Respondent failed to make rent and additional rent for the following month, Petitioner served Respondent with Notice of Termination. (Id.) This court held that the Notice of Termination was premature because under the lease, Respondent still had a grace period in which Respondent could cure. (Id.)

In the instant case, Respondent does not deny that they were late for rental payments from January 2013 — July 2013, but provides proof that each of these months were eventually paid. Here, the Notice of Termination is premature because pursuant to the terms of the Sublease, Respondent should have had the opportunity to correct the alleged current default, unless they were previously served with two ten-day notices and did not cure them within the allotted ten days. Between the months of January 2013 — July 2013, Petitioner sent letters in March, April and May 2013 demanding payment. Thus, Respondents were given an opportunity to cure and did indeed cure the defaults, which Respondents proved by providing cleared checks for all such months that were in default mentioned above.

Petitioner argues that the letters which were sent in March, April and May 2013 by Deborah Moss, a consultant of Host Hotels & Resorts, Inc. (hereinafter "Host"), demanding Rent and Additional Rent from Respondent for each of those months to be paid within ten days, constituted valid notices to cure.

First, such letters provided by Deborah Moss were not valid notices to cure for reasons stated below. Second, even if they were valid notices to cure, Petitioners accepted rent for those months within the ten-day period, and therefore such defaults were properly and timely cured, and no notice of termination should have been issued without an opportunity to correct the alleged current default. Deborah Moss sent letters demanding payment within ten days, on March 8, 2013, April 11, 2013, and May 3, 2013. Petitioners accepted payments on March 11, 2013, April 15, 2013 and May 13, 2013.

In regards to Petitioners argument that such letters are valid notices to cure, the argument is without merit because Deborah Moss, a consultant of Host, is essentially a "total stranger" to the lease and is a party who Respondents have never previously interacted with, therefore, the [*4]notices are therefore deficient under the rule in Siegel v. Kentucky Fried Chicken of Long Island.

In the instant case, Deborah Moss had sent three letters demanding rent to Mio Posto with one copy going to Cary Scott Goldinger, Esq. Even though Moss is a consultant of Host, and Host is the Sublandlord, Host is not named as Petitioner in this action and there is no proof that Deborah Moss had legal authority to act on Host's behalf. Other notices in this action, such as the Notice of Termination, are not signed by Deborah Moss, but rather by HMH Restaurants LP, General Partner of Host Restaurants GP, LLC, and Vice President of Host Hotels & Resorts, Inc., Brian Macnamara.

In Landlord and Tenant Practice in New York, it states: "when the party issuing the notice is a "total stranger" to the lease and is a party with whom the tenant has never previously interacted, the predicate notice may be found legally insufficient to terminate the tenancy." (Landlord and Tenant Practice, Finklestein and Ferrara §13:10, §15:95).

Additionally, the case of Siegel v. Kentucky Fried Chicken of Long Island governs the instant case. In Siegel, it was held that notices of default and or termination not signed by the owner or attorney named in the lease but by another attorney with whom the tenant had never previously dealt, were insufficient and the tenant was entitled to ignore them as not in compliance with the lease provisions concerning notice. (Siegel v. Kentucky Fried Chicken of Long Island, Inc., 108 AD2d 218, 488 N.Y.S.2d 744 [2d Dep't 1985], order aff'd, 67 NY2d 792, 501 N.Y.S.2d 317 [1986]; See also 117-07 Hillside Ave. Realty Corp. v. RKO Century Warner Theaters, Inc., 151 AD2d 732, 543 N.Y.S.2d 151 [2d Dep't 1989] where it was held that two notices to cure sent by the plaintiff were ineffectual because they were not sent by the landlord or its agent or attorney named in the lease.) A predicate notice signed by an agent is effective if the tenant has notice of that individual's authority to act on the landlord's behalf. (See Siegel, supra).

A predicate notice is unamendable. (See 185 East 85th St. v. Gravanis, N.Y.L.J., 1/21/81, p. 6, col. 2 [App Term 1st Dep't]; Katz v. Grifa, 156 Misc 2d. 203, 591 N.Y.S.2d 758 [City Civ Ct 1992]).

Thus, the letters demanding rent by the consultant Deborah Moss on behalf of Host (who is not a party to this proceeding) were ineffective because there is no proof of her authority to act for the Petitioner herein and there is no proof that there were prior dealing between the Petitioner that put Respondent on notice of her authority to act.

Therefore, based upon the foregoing, this summary proceeding is dismissed, and the Petitioner's cross-motion is denied.

So Ordered:

/s/ Hon. Scott Fairgrieve [*5]

DISTRICT COURT JUDGE

Dated:November 7, 2013

cc:Cary Scott Goldinger, Esq.

Kaufman & Kahn, LLP

Jeffrey H. Roth, Esq.