[*1]
Rosen v Evolution Holdings, LLC
2009 NY Slip Op 51275(U) [24 Misc 3d 1205(A)]
Decided on June 24, 2009
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This opinion is uncorrected and will not be published in the printed Official Reports.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 June 24, 2009
District Court of Nassau County, First District


Leslie Rosen AS EXECUTOR OF THE ESTATE OF WARREN REINER, Petitioner(s)

against

Evolution Holdings, LLC, "XYZ CORP.", Respondent(s).




SP 001255/2009



Ezratty, Ezratty & Levine, LLP, Attorney for Respondent, 80 E. Old Country Road, Mineola, New York 11501, 516-747-5566; Horing, Welikson & Rosen, P.C., Attorney for Petitioner, 11 Hillside Avenue, Williston Park, New York 11596, 516-535-1700.

Scott Fairgrieve, J.



Respondent EVOLUTION HOLDINGS, LLC moves for an order pursuant to CPLR 3211 (a) dismissing the non-payment proceeding on the grounds that no lease agreement was ever reached, and there was a failure to properly serve the rent demand. Petitioner opposes Respondent's motion.

This non-payment proceeding was instituted by service of a Notice of Petition and Petition by delivery to a person of suitable age and discretion on March 2, 2009 returnable in this court on March 13, 2009. On March 16th 2009, Respondent made the Motion to Dismiss.

In the affidavit in support of the motion, Thomas Cicero, representative for the Respondent, claims the parties were in the process of negotiating a lease but no agreement was ever reached due to the failure of the Petitioner to make certain repairs. Around August 5th 2008, the Respondent faxed a signed lease and rider to the Petitioner on which they had made certain changes. The Respondent began occupying 4913-15 Merrick Road, Massapequa in August 2008 pursuant to the terms of this lease. Respondent has currently paid over $100,000 to the Petitioner for the use and occupancy of the space. The Respondent maintains that the payments reflected the rent minus the cost of the repairs.

First, the Respondent claims that since no binding agreement was reached and the Petitioner accepted the partial payments the Respondent's obligations were satisfied (even though this was less than the amount owed under the lease) this proceeding should be dismissed. In opposition to the motion to dismiss, Petitioner attached to its papers a fully executed lease signed by both parties to demonstrate that a valid lease agreement exists. While claiming that negotiations were ongoing, the Respondent has not presented any evidence of this and has not shown a reason why the lease should not be considered final. In addition, David McGinnis, the managing agent of the Petitioner, swears that he personally discussed the signed lease agreement with Mr. Cicero. Mr. Cicero has not denied this. [*2]

As succinctly stated in Stepet Card and Gift, Inc. v. Matejka (483 NYS2d 76,77 (N.Y.A.D. 2 Dept., 1984), 106 AD2d 565, 565), the existence of a written agreement will be deemed valid and not merely negotiations when the writing is:

[E]videnced by the unequivocal actions of the parties; that is; entry into possession and payment of rent by plaintiff and its acceptance by defendants pursuant to the terms of the challenged lease agreements, and further, by the continued occupancy of the premise by the plaintiff.

The Respondent admitted in the affidavit that the he began paying rent in return for use of the property and therefore, using this criterion, it is clear that there was a valid and binding lease agreement. The Respondent has failed to show any agreement to accept a reduced rent. Furthermore, Paragraph 24 of the lease states that partial payment will not be deemed:

[A]nything other than on account of the earliest stipulated rent, nor shall any endorsement or statement of any check or any letter accompanying any check or payment as rent to be deemed an accord and satisfaction, and Owner may accept any such check or payment without prejudice to owner's right to recover the balance of such rent. (See Exhibit C of the Affirmation in Opposition).


It is settled law that "a tenant's duty to pay rent is not suspended, even if the landlord breaches its obligations under the lease, unless there is an express provision in the lease declaring the circumstances under which the tenant may withhold his rent." (Quentin Roosevelt Associates, L.L.C. v. Goldfinger, 2009 WL 1141344 (N.Y.Dist.Ct.)) Similarly in Manufacturers & Traders Trust Company v. Mills (619 NYS2d 407 (3rd Dept. 1994), 210 AD2d 657), partial payments on a credit card debt "could not be viewed as an accord or as a substituted agreement" where there was no evidence that the plaintiff would accept the payments in lieu of defendants original obligation. In the case at bar there was no evidence that the landlord would be willing to accept the partial payments in lieu of the rent and therefore the tenant's obligation is not satisfied. This principal is further illustrated in Citibank v. Maniaci (2009 WL 865605 (N.Y.Dist. Ct.)) where the court held that the credit card agreement permits the bank to accept partial or late payments without forfeiting any of their rights under the credit agreement. This is analogous to the case at hand in which the lease agreement allowed the landlord to accept partial or late payments without forfeiting their right to sue for the amount due. The Respondent's partial payment does not constitute an accord and satisfaction of its rental arrears. Therefore, the Petitioner has not waived the Landlord's right to a nonpayment action by accepting the money paid.

The Petitioner attaches to its motion papers a record of text messages between the parties to prove the existence of a lease. (See Exhibit D of the Affirmation of Opposition). Since Respondent failed to contest the validity of the text messages, the same are deemed admitted. See Kuehne & Nagel, Inc. v. Baide, (36 NY2d 539, 330 NE2d 624) wherein the court stated: "facts appearing in the movant's papers which the opposing party does not controvert, may be deemed to be admitted." Respondent failed to submit an affidavit by a person with knowledge to deny the truth of the text messages.

In People v. Limage (851 NYS2d 852 (Crim. Ct., City of NY, 2008), 9 Misc.3 395)the court [*3]held:
With the advancement of technology, telephones have come to be used for more than simply placing and receiving calls. They now have the capability of sending and receiving messages and pictures, accessing the internet, playing music, and much more. The defendant's suggestion that text messages are brief, easy to ignore, and therefore not as serious as phone calls, letters or emails, is without merit. On the contrary, text messages are communicated in writing, just like letters or emails, and access the recipient often instantaneously, like a phone call directly to the person's cell phone. Additionally, the brevity of a text message has no impact on the severity of its meaning.


The lease executed by the two parties is sufficient proof to overcome the motion to dismiss and the language of the text messages further indicates the existence of a fully executed lease agreement.

Second, the Respondent claims no certified mailing of the "Three Day Notice" was received and therefore the non-payment proceeding must be dismissed. However, according to the sworn testimony of Mr. Weiss, the process server, on March 3rd, 2009 he served copies of the rent demand upon the respondent at the property in question by mailing it at the post office by certified mail and regular mail in the state of New York. (See Exhibit A of Affirmation of Opposition) In a nonpayment preceding the landlord may demand the rent from a tenant by way of a written notice or orally. (Landlord and Tenant Practice in New York, Daniel Finkelstein and Lucas Ferrara, § 14:16-14:18) However, Paragraph 27 of the Lease in the case at bar, specifically states that any notice from the landlord to the tenant is sufficient as long as it is in writing and sent by "registered or certified mail". The Petitioner has gone above what is required by law and the lease by personally serving an employee of the Respondent with the rent demand and also having same served by certified and regular mail. (See Exhibit C of Affirmation of Opposition) Therefore, Petitioner has more than complied with all the requirements of the RPAPL Section 735 and the lease regarding the service of the Rent Demand.

The facts alleged by the Petitioner demonstrate a cause of action for rent owed and consequently the motion to dismiss must be denied (Collision Plan Unlimited Inc. v. Bankers Trust Co., 63 NY2d 827, 482 NYS2d 252 (1984)). Even if the Respondent claims that the failure of the Petitioner to make repairs is a defense to the non-payment allegations this is only a possible defense and does not render the entire petition subject to dismissal.

This case is set down for conference/trial for July 6th, 2009 at 11:00.

So Ordered:

/s/ Hon. Scott Fairgrieve

DISTRICT COURT JUDGE

Dated:June 24, 2009

CC:Ezratty, Ezratty & Leving, LLP

Horing, Welikson & Rosen, P.C.

SF/kf