This commercial holdover proceeding was tried by the court on April 14 and 15, 2005. The parties submitted post-trial briefs on May 13, 2005.

FACTS

The court finds the following facts. Petitioner 31 West 47th Street is the owner of the building located at 29-31 West 47th Street in Manhattan's Diamond District. The building includes storefronts on 47th Street and a street level arcade with other commercial units. In May 2004, petitioner entered into a lease for one of the spaces in the arcade with Nelly's Fine Jewelry, Inc. ("Nelly's"). The lease term was to commence June 1, 2004 and end on May 31, 2006. Nelly's space was to be used for retail and wholesale buying and selling of jewelry.

The lease contained a number of provisions governing Nelly's advertising. Paragraph 43 of the rider provides:

The Tenant and its employees shall at all times during the term of this lease or any extension thereof be governed by all existing rules and regulations annexed hereto and all further reasonable rules prescribed by the management of the jewelry arcade and conduct it's [sic] business in said arcade with due regard to the rights of other tenants. The Tenant shall not employ any person in the demised premises who is reasonably objectionable to the Landlord. The Tenant agrees to remove promptly any such objectionable parties from the premises.

As an inducement, the Landlord shall have exclusive and final control of the displays, exhibits and any demonstrations with the premises in connection with business conducted by the Tenant. If window space is included within the premises leased to the Tenant herein, the Tenant shall supply all [*2]material and fixtures for window display, however such display shall be under the exclusive and final control of the Landlord. Maximum dimensions of any signage shall be approved by Landlord in advance of installation. Landlord shall have exclusive and final control of any and all employees soliciting business outside of Tenant's space ("hawking") including but not limited to aisles, halls, in front of store, building or in the lobby.

Paragraph 35 requires Nelly's to abide by the building's rules and regulations, which are set forth in numbered paragraphs at the end of the lease.

Paragraph 1 of the building's rules and regulations provides in relevant part:

The sidewalks, entrances, driveways, passages, courts, elevators, vestibules, stairways, corridors or halls shall not be obstructed or encumbered by any Tenant or used for any purpose other than for ingress to and egress from the demised premises and for delivery of merchandise and equipment in a prompt and efficient manner ... .

Paragraph 9 of the rules and regulations provides:

Owner shall have the right to prohibit any advertising by any Tenant which, in Owner's opinion, tends to impair the reputation of Owner or its desirability as a building for stores or offices, and upon written notice form Owner, Tenant shall refrain from or discontinue such advertising.

Joseph Lipton, who is petitioner's principal, testified that during lease negotiations he informed Nilya Rakhminova, Nelly's principal, that he did not want Nelly's to use "hawkers." Rakhminova admitted that Lipton had conveyed this to her, but that she understood "hawking" to be an aggressive style of salesmanship characterized by an employee stopping pedestrians on the street and leading them to a given store. According to Rakhminova, such individuals often attempt to poach customers from other businesses on 47th Street.

In the summer of 2004 Lipton observed an individual standing in front of the building, sporting a sandwich board advertising Nelly's and handing out leaflets directing pedestrians to Nelly's store. Rakhminova admitted that Nelly's hired this individual, and his successors, whom she referred to as "flyer guys." Rakhminova testified that she and her husband, who was frequently at her business, instructed the flyer guy to stay outside the property line of 29-31 West 47th Street. There was no evidence at trial that these individuals would lead potential customers to Nelly's store.

Lipton testified that he spoke with Rakhminova on the phone after observing the flyer guy, and told her to "stop it." He testified that Rakhminova stated that she needed to use this method [*3]to attract pedestrians to her business, because the store was new and situated in an arcade rather than along the street.

Lipton testified that Nelly's continued to use a flyer guy. Lipton characterized this employee as a "hawker." Lipton spoke to Rakhminova on two other occasions, once at her store and once at his office, although he could not remember the sequence. Lipton did not provide a great deal of detail concerning these conversations. He did testify that he told her to stop using the hawker. Rakhminova testified that these three conversations did not happen, and that the first time she learned of petitioner's objection to the flyer guy was when she received a Notice to Cure. The court finds that Lipton's account of these three conversations, while terse, was credible.

Lipton caused a Notice to Cure to be prepared and served upon respondent in November 2004. The Notice to Cure states in relevant part:

PLEASE TAKE NOTICE, that you, as tenant, are hereby notified by Owner that your are in default of the lease and you must immediately cease and desist from having or allowing any and all employees from hawking customers or soliciting business in any manner outside of Tenant's space including but not limited to aisles, halls, in front of the store, building or in the lobby.

YOU ARE FURTHER NOTIFIED, that you have fifteen (15) days to cease and desist from this practice. If you do not cure or remedy this default within fifteen (15) days, Owner will cancel your lease and terminate your tenancy.

Lipton testified that he continued to observe Nelly's hawker in front of the building after the Notice to Cure was served. He also stated that Nelly came to his office with a mutual acquaintance after the Notice to Cure was served. At this meeting, according to Lipton, Nelly asked for permission to use the hawker in order to advertise her business. Lipton stated that he turned down her request.

Subsequently, apparently on December 13, 2004,^[FN1] petitioner caused a Notice of Cancellation of Lease to be served on respondent. The Notice of Cancellation states in relevant part:

PLEASE TAKE NOTICE, that you, as Tenant, are hereby notified that the undersigned Owner elects to terminate as of December 18, 2004, your tenancy, of the premises now leased by you, located at 31 West 47th Street, Store No. 4, New York, New York, 10036, for your failure to comply or remedy your default of the lease within fifteen (15) days as required, [*4]pursuant to owner's Notice to Cure served on you on November 24, 2004. You have failed to comply or remedy your default by failing to cease and desist from having or allowing any and all employees from hawking customers or soliciting business in any manner outside of Tenant's space including but not limited to aisles, halls, in front of the store, building or in the lobby. Pursuant to Section 17 of the lease, your failure to comply or remedy said default within fifteen (15) days of service of the Notice To Cure, allows Owner to cancel this lease by giving you five days notice of cancellation of your lease. And upon the date set forth in this Cancellation Notice this Lease ant the Term shall cease, terminate and come to an end.

Lipton testified that he observed Nelly's hawker in front of the building after the Notice of Termination was served. Petitioner offered two sets of photos which were entered into evidence, petitioner's exhibits 3 (A)-(D) and 4(A)-(C), and a single photo as respondent's exhibit J. The photos comprising petitioner's exhibit 3, and respondent's exhibit J, were taken by Lipton himself on December 13, 2004. The photos comprising exhibit 4 were taken by Lipton's son in late March 2005.

Several of these photographs show individuals wearing a Nelly's sandwich board near the front of the building. They hold sheaves of papers the size of handbills. A number of the photos show the Nelly's employee right at the property line separating 29-31 West 47th Street from 27 West 47th Street. The property line is well delineated in the photos because the two buildings have differently paved sidewalks in front of them. Near the property line is a fire hydrant protected by two metal bollards. From these photos, and other photographs entered into evidence on respondent's case, it can be determined that the hydrant is on 27 West 47th Street's side of the property line. The western bollard stands just over the line, on 29-31 West 47th Street's side of the property line. In most of the photos the Nelly's employee stands to the east of this bollard and to the west of the hydrant, i.e. close to the dividing line between the two buildings but on the 27 West 47th Street side. However, one of the photos entered into evidence, Petitioner's exhibit 4 C, shows the hawker or flyer guy standing to the west of the western bollard, and therefore in front of 29-31 West 47th Street.

On cross-examination Lipton was shown photos of the front of the building which included a gentleman standing in front of Golda Jewelry ("Golda's). Golda's is a tenant of 29-31 West 47th Street. It has a storefront and window directly on 47th Street. Lipton admitted that he knew that the individual in the photos worked for Golda, and that the individual would approach pedestrians who stopped at Golda's window and urge them to enter the store. Lipton distinguished this person's activities from Nelly's hawker because he wore a jacket and tie and not a sandwich board, only approached persons who had stopped at Golda's window, and did not hand out leaflets. For these reasons, Lipton deemed Golda's employee not to be harmful to the building's reputation. Rakhminova confirmed that this individual worked for Golda's and was on the street in front of the building most working days attempting to bring people into Golda's store. [*5]

The primary issue in this proceeding is the sufficiency of the Notice to Cure.

The purpose of a Notice to Cure is to inform the tenant specifically of claimed defaults in its lease obligations and of the forfeiture and termination of the lease if the claimed default is not cured within a stated period of time. (Filmtrucks, Inc. v Express Indus. and Terminal Corp., 127 AD2d 509, 510.) A Notice to Cure must be unequivocal and unambiguous. (Garland v Titan West Assocs., 147 AD2d 304, 311.) The standard for determining if a preliminary notice is sufficient "is one of reasonableness in view of the attendant circumstances." (D.K. Property, Inc. v Mekong Restaurant Corp., 187 Misc 2d 610, 611 [App. Term 2001] [quoting Hughes v Lenox Hill Hospital, 226 AD2d 4, 18, lv denied 90 NY2d 829].)

Here the Notice to Cure, quoted at length above, does not set forth the section of the lease that is alleged to have been violated. Neither does it set forth the nature of the default, except by implication in stating the steps necessary to cure.

In stating the steps necessary to cure, petitioner paraphrases language from paragraph 43 of the rider — without citing that paragraph — by stating that respondent is barred from having or allowing "any and all employees from hawking customers or soliciting business in any manner outside of Tenant's space including but not limited to aisles, halls, in front of the store, building or in the lobby."

Arguably, this paraphrase of a portion of paragraph 43 sufficiently alerted respondent that paragraph 43 is the lease provision relied upon by landlord even in the absence of any citation to that numbered paragraph.^[FN2]

However, paragraph 43 does not contain an outright bar of "hawking" by Nelly's. Instead it provides that Landlord shall have "exclusive and final control of any and all employees soliciting business outside of Tenant's space ("hawking") including but not limited to aisles, halls, in front of store, building or in the lobby." (Emphasis supplied.)

The Notice to Cure makes no mention of how the Landlord had exercised this "exclusive and final control" and thus fails to notify respondent of how it is in default of the lease. Presumably, petitioner was relying on what Lipton told Rakhminova during their conversations, but the Notice to Cure does not say anything about these conversations, nor set forth any other facts showing how petitioner had chosen to exercise its "exclusive and final control" over Nelly's hawkers. Accordingly, the Notice to Cure does not set forth clearly how respondent was in default of its lease obligations.

Some courts have held that it is permissible to look outside the four corners of the Notice to Cure to see if the landlord's and tenant's interactions prior to service of the Notice to Cure make it clear that the tenant was aware of its specific default. (See Ohday Realty Corp. v Lupone, 192 Misc 2d 317; White Angel Realty v Asian Bros. Corp., 183 Misc 2d 674.) The First Department's statement in Hughes v Lenox Hill Hospital (supra, 226 AD2d at 18) that a Notice to [*6]Cure's sufficiency is to be evaluated "in view of the attendant circumstances" would appear to invite such an inquiry.

Even were this court to look at such extrinsic evidence here, the evidence concerning the content of Lipton's conversations with Rakhminova is too equivocal to support a finding that respondent knew how it had defaulted under the lease. As noted above, most of the photos offered by petitioner to show the offending hawker show the hawker slightly to the east of the building's property line. In other words, all the photos, save one, show a hawker who is not literally "in front of" the building. Lipton indicated during his testimony that he still considered the placement of the hawker in these photos to be "in front of the building." Rakhminova took the position that the hawker was not in front of the building so long as he was to the east of the property line. The lease does not define "in front of" the building. Additionally, Golda's, another store in the building, had a hawker regularly stationed in front of its store, albeit a hawker whose method was more low-key than Nelly's. Indeed, there was testimony concerning the ubiquity in the diamond district of hawkers, flyer guys, and other jewelry store employees who use a range of tactics to entice potential customers to enter a particular store.

Under such circumstances it cannot be said from evidence extrinsic to the to the Notice to Cure that respondent had notice as to how its deployment of a flyer guy caused it to default on its lease obligations.

In the seminal case of Chinatown Apartments v Chu Cho Lam (51 NY2d 786) the Notice to Cure stated that tenant's default arose from a "partition" that he had erected in his apartment. The tenant had actually "constructed a freestanding, cube-like structure which stood in the center of one of his rooms (Id. at 787.) The Court of Appeals held that:

The deficiency in the notice arises from its failure to cite any specific prohibition in the lease which had been violated by the construction of the "cube." Although several covenants of the lease were mentioned in the notice, none of the cited clauses prohibited the erection of freestanding structure such as that built by respondent. Since respondent could not be expected to take remedial action by removing the "cube" unless his landlord first demonstrated that such remedial action was required by the lease, the omission in the notice must be considered a fatal defect.

In this proceeding, petitioner's Notice of Default did not cite any clauses in the lease that gave rise to respondent's purported default. Even if respondent could intuit that paragraph 43 was the basis for the Notice of Default, that provision, standing alone, does not bar respondent's use of hawkers. As was the case in Chinatown Apartments, the Notice to Cure in this case does not demonstrate "that [the demanded] remedial action was required by the lease."

An invalid Notice to Cure may not be amended after a summary proceeding has been commenced. (Chinatown Apartments, 51 NY2d at 788.) Accordingly, as a valid Notice to Cure is a dition precedent to this proceeding, the proceeding must be dismissed.

For the reasons stated, the court finds for the respondent. The petition is dismissed.

Dated: May 16, 2005_________________________________

J.C.C.