In this holdover proceeding, the respondent moves to dismiss the petition on several grounds.

The respondent occupies premises subject to ETPA located at 30 Cottage Place, Apartment 5A, Mount Vernon, New York, pursuant to a written lease for a one year term which has been renewed several times. The petitioner served respondent with a One Month Notice to Vacate and Terminate Tenancy and 10 Day Notice to Cure on June 9, 2009, advising respondent that her tenancy would be terminated on July 15, 2009 if she failed to cure a violation of the lease. The grounds for termination is respondent's chronic failure to pay her rent in a due and timely fashion as provided for in the lease agreement which resulted in petitioner having to repeatedly serve demands, notice of petitions, petitions and obtain [*2]the issuance of judgments and warrants for non-payment of rent. The petitioner then commenced this holdover proceeding on August 11, 2009.

In her moving papers, respondent's first contention is that the Court does not have personal jurisdiction over her because the Notice of Petition and Petition were not properly served pursuant to RPAPL § 735. Respondent also contends that the Court lacks subject matter jurisdiction over the instant action because the Notice of Petition and Petition were improperly served and the Petition states an incorrect amount of outstanding rent. Respondent's third contention is that the Notice of Termination was not properly signed and as such is deficient. Respondent further asserts that the Petition fails to comply with the requirements of RPAPL § 741 in that it does not set forth a concise statement of the facts upon which the proceeding is predicated. Respondent also asserts that petitioner created the respondent's alleged chronic non-payment situation by using improper accounting practices. Respondent's final contention is that petitioner's billing practices are deceptive and are in violation of the Fair Debt Collection Practices Act ("FDCPA") and the New York General Business Law § 349.

In her affidavit in support of her motion the respondent states that she has repeatedly asked for an accounting of her rent due and was never provided with an accurate account of what she owed. Respondent further claims that she has, in fact, paid the landlord the alleged overdue rent. Respondent acknowledges that petitioner has commenced numerous non-payment proceedings against her for which she has appeared in court.

In the affidavit in opposition, the petitioner states that the Notice of Petition and Petition were properly served on respondent as the affidavit of service, which was filed with the Court on August 12, 2009, by a copy of the papers being affixed to respondent's door and then mailed to respondent by both regular and certified mail. As such, petitioner contends that the Court has personal jurisdiction over respondent. Petitioner further contends that the Court also has subject matter jurisdiction over this matter because the Petition clearly states a cause of action as required for a holdover proceeding and the allegations regarding the amount owed for use and occupancy, while not required in this holdover proceeding, are also clearly established in the Petition and attached accounting printout. Petitioner further contends that assuming arguendo that the Notice of Termination contains incorrect dates of the judgments and warrants, the notice sufficiently states the basis for the holdover proceeding as required by RPAPL § 741, that being petitioner's chronic failure to pay rent in a timely manner as per the lease agreement. Petitioner contends and asserts that the Notice of Termination was properly signed by petitioner's attorney as said attorney was authorized to do so by Juda Klein, the petitioner's manager. Moreover, a copy of the authorization was attached to the termination notice. Finally, the Petitioner argues that the FDCPA and the New York General Business Law § 349 are not applicable to the landlord tenant relationship nor are they a basis for dismissing the Petition.

In reply, respondent contends that petitioner's opposition papers were not filed and served in accordance with court rules and therefore should not be considered by the Court in deciding respondent's motion. In addition, respondent re-iterates her arguments that the Petition is insufficient under RPAPL § 741 and that the authorization [*3]is defective.

The Court finds that it has both personal jurisdiction and subject matter jurisdiction over the instant proceeding. Petitioner's affidavit of service, which states the proper service pursuant to RPAPL § 735, was properly filed with the Court. Respondent's mere assertion that she did not receive the Notice of Petition and Petition by regular mail is insufficient to rebut the inference of proper service. See Simonds v. Grobman, 277 AD2d 369 ( 2nd Dept. 2000). Moreover, this Court is vested with subject matter jurisdiction over the instant proceeding pursuant to RPAPL § 711(1).

The Court also finds that the Petition sufficiently alleges the underlying facts such that respondent is apprised of the basis for the holdover proceeding and the issues in the case. The Notice of Termination which is attached to the Petition and incorporated therein specifically states that the respondent repeatedly failed to pay her rent in a timely manner as required by the subject lease agreement. The Notice of Termination also states that due to respondent's failure to pay her rent, petitioner was required to commence numerous proceedings against her to obtain judgments and warrants against her. The fact that the dates of said judgments and/or warrants may have been misdated is not grounds warranting dismissal of the Petition, especially in light of the respondent's acknowledgment in her affidavit that numerous non-payment proceedings were brought against her and that she appeared in court in response to said proceedings.

The respondent's contention that the Notice of Termination is deficient because it was not signed by the landlord is without merit. The lease agreement between petitioner and respondent states that notice may be given by landlord's attorney. The Notice of Termination was signed by petitioner's attorney Carl L. Finger "as attorney for Cottage Realty Associates, LLC a/k/a Klein Properties, LLC pursuant to the authority annexed hereto." Annexed to said Notice was an authorization signed by Juda Klein, petitioner's manager, granting Mr. Finger authority to sign and serve various notices on petitioner's behalf. A notice of termination signed by an agent or attorney not named in a leased as authorized to act for the landlord is sufficient if accompanied by proof of the latter's authority to bind the landlord in the giving of such notice. Siegel v. Kentucky Fried Chicken, 108 AD2d 218 (2nd Dept. 1985). As such, petitioner's Notice of Termination is sufficient to terminate the respondent's tenancy.

Respondent's contention that petitioner created her chronic late payment situation is also without merit. The mere fact that petitioner charged respondent fees associated with her failure to pay her rent in a timely fashion is not a legal basis for dismissing the Petition.

Finally, the Court finds that the FDCPA and the New York General Business Law § 349 cannot be a basis for dismissal of the Petition. The respondent's alleged FDCPA and New York General Business Law § 349 claims are not defenses to the instant proceeding and respondent is barred from alleging counterclaims by the terms of the lease.

The respondent's motion to dismiss the petition is denied. The respondent is to serve an answer within twenty (20) days from the date of this order.

This constitutes the Decision and Order of this Court.

The court considered the following papers: Motion to Dismiss dated August 28, 2009, [*4]Affidavit in Support, Affirmation in Support, Exhibits A-F; Affirmation in Opposition to Motion to Dismiss dated November 11, 2009, Affidavit in Opposition dated November 11, 2009; Exhibits A-E; Reply Affirmation dated December 29, 2009.

Dated: April 12, 2010

Mount Vernon, New York

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HON. ADAM SEIDEN

Associate City Judge of Mount Vernon