Appeal from a final judgment of the Justice Court of the Village of Ossining, Westchester County (Andrew N. Grass, Jr., J.), entered June 11, 2007. The final judgment, entered pursuant to orders dated October 16, 2006 and May 4, 2007 which, inter alia, denied appellants' motion to dismiss and granted landlord's cross motion for summary judgment, awarded landlord the sum of $361,846.30 as against tenant Excelsior Realty Corp. a/k/a Excelsior Realty Inc., d/b/a Party Plus Warehouse, in a holdover summary proceeding.

Appeal by Thomas Yewdell dismissed.

Final judgment reversed without costs, order dated October 16, 2006 insofar as it denied appellant Excelsior Realty Corp. a/k/a Excelsior Realty Inc., d/b/a Party Plus Warehouse's motion to dismiss and granted landlord's cross motion for summary judgment as against said appellant, and order dated May 4, 2007, vacated, said appellant's motion to dismiss granted, and cross motion by landlord for summary judgment denied.

Landlord commenced the instant holdover summary proceeding against the corporate tenant and the individual guarantor (collectively appellants) seeking to recover possession of the subject commercial premises and unpaid rent. Appellants moved to dismiss the petition pursuant to CPLR 3211, and landlord cross-moved for summary judgment. Appellants based their motion, in part, upon a claim that the predicate 10-day notice of default, served pursuant to section 21.01 (a) of the lease, and the five-day notice of termination, served pursuant to section 21.02 (a) thereof, were not served in conformity with the requirements of the lease. In an order dated October 16, 2006, the Justice Court rejected said contention, denied appellants' motion to dismiss and awarded judgment in favor of landlord. In an order dated May 4, 2007, the Justice [*2]Court determined the monetary issues involved in landlord's cross motion for summary judgment, and judgment was entered awarding landlord the sum of $361,846.30. The instant appeal ensued.

A review of the various moving papers and the lease agreement indicates that the initial 10-day notice of default was dated March 27, 2006, delivered on March 28, 2006 and required that the default be cured by April 6, 2006. Section 26.02 of the lease provides that notices are effective upon delivery. Pursuant to section 20 of the General Construction Law, the "day from which any specified period of time is reckoned shall be excluded in making the reckoning." Thus, the 10-day notice of default was defective as it should have provided a cure date no earlier than April 7, 2006, as opposed to the April 6, 2006 date. A review of the five-day notice of termination indicates that it suffered from a similar defect. Since valid service of any required predicate notices is a condition precedent to the maintenance of a summary proceeding, the Justice Court should have granted tenant's motion to dismiss (see Chinatown Apts. v Chu Cho Lam, 51 NY2d 786 [1980]; Kabro Assoc. LLC v KDMC Rest. Inc., 10 Misc 3d 127[A], 2005 NY Slip Op 51896[U] [App Term, 9th & 10th Jud Dists 2005]; Henry & Baltic Assoc. v K & A Food Corp., 7 Misc 3d 83 [App Term, 2d & 11th Jud Dists 2005]).

The appeal by Thomas Yewdell must be dismissed because the final judgment was only against the corporation and Yewdell is not aggrieved thereby (CPLR 5511).
However, we note that since Yewdell was merely a guarantor and not a tenant in possession, he was not a proper party to the proceeding (see Phoenix Indus., Inc. v Ultimate Sports, LLC, 19 Misc 3d 129[A], 2008 NY Slip Op 50520[U] [App Term, 9th & 10th Jud Dists 2008]).

In view of the foregoing, we need not reach the remaining issues raised on appeal except to note that, contrary to landlord's contention, the appeal from the final judgment brings up for review any order necessarily affecting the final judgment, including the order determining the sufficiency of the service of the predicate notices (see CPLR 5501 [a]).

Rudolph, P.J., and McCabe, J., concur.

Scheinkman, J., taking no part.
Decision Date: November 19, 2008