1256-60 Lexco LLC v 1260 Lexington Corp. (2010 NY Slip Op 51828(U))

1256-60 Lexco LLC v 1260 Lexington Corp.

2010 NY Slip Op 51828(U) [29 Misc 3d 1214(A)]

Decided on October 20, 2010

Civil Court Of The City Of New York, New York County

Bluth, 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This opinion is uncorrected and will not be published in the printed Official Reports.

The trial of this commercial holdover proceeding was held on September 27 and 28, 2010. For the following reasons, the case is dismissed.

Respondent operates a restaurant on the premises. On or about June 14, 2010, petitioner served a five-day notice to cure on respondent alleging that respondent had violated substantial obligations of its tenancy by receiving various violations from the New York City Department of Health ("DOH"). Petitioner relied upon the list of violations DOH found during its inspection on June 2, 2010 as it appeared on DOH's web site shortly thereafter. The notice to cure directed respondent to cure the violations or before June 24, 2010. Taking the position that the violations were not cured by the deadline, petitioner served a three day notice of termination, purporting to terminate the tenancy as of July 6, 2010. This proceeding was commenced on July 13, 2010.

Acceptance of rent

Preliminarily, petitioner received the July rent check shortly after July 6, 2010 and deposited that check on July 21, 2010, the original return date of this proceeding. Respondent [*2]made a motion to dismiss during trial based upon its assertion that petitioner's acceptance of the July rent constitutes a waiver of the previously served termination; this Court disagrees and denies the motion. The underlying lease provided that rent was payable in advance on the first day of each and every month during said term. As the Appellate Term, First Department stated in Intel 157 West Realty, LLC v Jack Block Travel, 30 HCR 96B, NYLJ February 8, 2002, p. 19, col. 1 (App Term,1st Dept): "Since the party's lease provided that rent was payable in advance on the first of the month, tenant was obligated to pay for the entire month, whether or not it used the premises for the full period". Therefore, the July rent was due on July first, even if the tenant moved out on July 2nd.

In 1251 Ams. Associates II LP v Rock 49th Restaurant Corp., 13 Misc 3d 142(A), 831 NYS2d 360 (App Term,1st Dept 2006), the Appellate Term reversed the trial court's dismissal of the holdover proceeding on strikingly similar facts. In that case, the court specifically held that the landlord's acceptance of the tenant's tender of the April 2005 rent (due on April 1, 2005) on April 6, 2005 did not vitiate the prior notice which terminated the tenancy effective April 5, 2005.

The Court must look to the period for which the payment is made, not when the payment was made. Here, because the tenancy was terminated after the July rent became due, petitioner was free to accept July rent — what it could not do was accept any rent which came due after the lease was terminated. Thus petitioner's acceptance of July's rent did not vitiate or otherwise constitute a waiver of the termination notice, and respondent's motion to dismiss made during trial, based on petitioner's acceptance of July rent, is denied.

The relevant facts were undisputed. Respondent operates a restaurant on the premises. On June 2, 2010, an inspector from the City Department of Health ("DOH") inspected the restaurant and issued violations. Paragraph 6 of the lease requires the tenant to abide by all requirements of law. Paragraph 43(D)(2) is more specific to health code violations. As relevant here, it provides:

Petitioner took the position that by getting those violations, respondent violated paragraphs 6 and 43(D)(2) of the lease, and further took the position that those lease sections were substantial obligations of the tenancy. Petitioner obtained information aboutthe violations issued on June 2nd only from the DOH's website. Obviously relying on the accuracy of the website, petitioner sent respondent a notice to cure, demanding that the respondent cure the violations listed by June 24, 2010. Perhaps by coincidence, a DOH inspector re-inspected the premises on June 24th and issued violations. The petitioner thereafter terminated the lease. At no time did respondent seek a Yellowstone injunction. [*3]

Many violations were found on June 2nd that were not found on June 24th, thus indicating that respondent cured them. Any new violations - those which were found on June 24th but not part of the notice to cure - cannot support terminating the tenancy, as respondent never had a chance to cure them. Therefore, the only relevant violations were those found on June 2nd and remaining on June 24th — the "uncured" violations.

A comparison of the twelve items listed on petitioner's notice to cure (as amplifiedby respondent's exhibit D, the DOH printout) with respondent's exhibit C (inspector's handwritten notice of violation from June 24th inspection) shows as follows:

1. Number 1 on the notice to cure/number 9 on exhibit D - regarding mildew on a fan— is nowhere on Exhibit C. For purposes of this trial, this violation was cured.

2. Number 2 on the notice to cure/number 6 on exhibit D - regarding a missing endcap on one lightbulb in the basement is nowhere on Exhibit C. For purposes of this trial, this violation was cured.

3. Number 3 on the notice to cure/number 5 on exhibit D - regarding a waste line from the ice machine leaking into a metal tray in the basement is nowhere on Exhibit C. For purposes of this trial, this violation was cured.

4. Number 4 on the notice to cure/numbers 4 and 7 on exhibit D - regarding a can of Raid meant for household use found in a storage area (No.4) and an open bait station used (#

7) is partially on exhibit C - violation #

6 states that an open bait/green brick was observed in the basement boiler room. Therefore, part of number 4 (the can of Raid) was cured, and the part regarding a brick in the boiler room remained.

5. Number 5 on the notice to cure/number 3(a) through (d) on exhibit D - thatfacility not vermin-proof, specifically 3(a) that there was no screen from the basement door to the outside, 3(b) grease build up in basement, 3 c) lots of garbage in the hot water heater/garbage room in basement, 3(d) water on the floor in the basement.

In Number 5 in exhibit C (June 24th inspection), the inspector found the facility was not vermin proof because: (1) old food and debris noted on floor in basement boiler room, (2) a gap of about ½ inch noted around ceiling screen leading to outside in basement boiler room, (3) lots of grease around electrical units and floor in front food prep/service area, (4) about ½ inch diameter observed at wall/ceiling junction in basement foodpreparation area and (5) front side door entrance open without air curtain. Some violations found within Number 5 in exhibit C are similar (but not exact duplicates) and others are either different or not detailed enough for this Court to consider them uncured violations. The Court will address each as listed in the notice to cure.

Number 5 on the notice to cure/number 3(a) — that there was no screen from the basement door to the outside — remained on June 24th [see exhibit C, number 5, last item (5) above)].

Number 5 on the notice to cure/number 3(b)— grease build up in basement — has no direct counterpart in the June 24th inspection. The Court is uncertain whether the grease buildup found on June 24th is the same grease buildup as found on June 2nd; on the earlier day, the grease buildup was noted in the basement but on the latter day it was in the frontfood prep/service area. [*4]Because all the other violations specifically list the basement location when the violation was found in the basement, because the petitioner never claimed that the front food prep area is located in the basement, and because such a finding would be both counter-intuitive and not based upon any facts, this Court finds that the June 24th inspection did not find grease in the basement, and so for purposes of this trial, that violation was cured. It was petitioner's burden to prove the uncured violations, and petitioner failed to prove that new or different grease was found in a different area on June 24th.

Number 5 on the notice to cure/number 3(c) — lots of garbage in the basement hot water heater/garbage room— has a similar violation on June 24th, where old food and debris was noted on floor in basement boiler room. From the documents, it appears that the boiler room was cleaned up, but not perfectly. It does not appear that restaurant garbage was stored in that area at the time the inspector visited on June 24th. However, because there was a refuse issue in the boiler room remaining, the Court places this in the "uncured" category.

Number 5 on the notice to cure/number 3(d) on exhibit D - regarding water on the basement floor of the premises is nowhere on Exhibit C. For purposes of this trial, this violation was cured.

6. Number 6 on the notice to cure/number 2 on exhibit D - regarding food being prepared under a fly strip containing a dead fly is nowhere on Exhibit C. Apparently, fly strips and other sources of potential contamination were moved away from the food preparation tables. Thus, for purposes of this trial, this violation was cured.

7. Number 7 on the notice to cure/numbers 10 and 11 on exhibit D - five live fruit flies (number 10) and ten live house flies (number 11) were found. On the June 24th reinspection, thirteen house flies were found and no fruit flies. Therefore, the seventh item on the notice to cure was partly cured and partly uncured.

8. Number 8 on the notice to cure/numbers 8(a) and 8(b) on exhibit D - regarding undisposed spoiled food was nowhere in exhibit C and for purposes of this trial, this violation was cured.

9. Number 9 on the notice to cure/number one on exhibit D - regarding cooked food improperly reheated was nowhere in exhibit C and for purposes of this trial, that violation was cured.

10. Number 10 on the notice to cure- regarding the lack of on-site nutritional labels for bulk cooking oil (presumably to check for trans fats)— is not found on exhibit D and was nowhere in exhibit C. Therefore, there is no proof that there ever was such a violation, despite what was on the DOH website.

11. Number 11 on the notice to cure - regarding presence of trans fats — is not found on exhibit D and was nowhere in exhibit C. Therefore, there is no proof there ever was such a violation, despite what was on the DOH website.

12. Number 12 on the notice to cure - regarding evidence of mice - is not found on exhibit D and was nowhere in exhibit C. Therefore, there is no proof there ever was such a violation, despite what was on the DOH website.

Finally, in an addendum to the June 24th inspection, the inspector wrote (among other things) "minor vermin and food violation". So, according to the inspector, who is charged with having expertise in these matters, the violation was "minor". [*5]

The following are the violations that the inspector found on both June 2nd and June 24th: (1) There was an open bait/green brick rodenticide in the basement boiler room; (2) that there was no screen from the basement door to the outside; (3) garbage was removed from the boiler room, but not well enough; some old food and debris remained on the boiler room floor; (4) there were house flies found - and the number increased from ten to thirteen.It is worth noting again that on June 24th, even the inspector documents the vermin violation a "minor" one.

The Court next turns to exhibit A, the results of the hearing on the June 24th inspection as it relates to the above uncured violations. Regarding the boiler-room related items (numbers (1) (green brick in boiler room) and (3) (food and debris in boiler room), the hearing examiner found that the restaurant "is not responsible for boiler room. Owner of building put green bricl [sic - brick] in the cited area". Accordingly, because the petitioner relied upon the DOH for finding the violations and determining whether there was a cure, and because the DOH determined that the boiler-room related violations are not charged to the tenant, this Court finds that those uncured violations will not support the instant holdover proceeding.

That leaves two violations upon which petitioner claims entitlement to evict, even if the hearing officer found they had been corrected after June 24th and before the DOH hearing: the lack of a screen and thirteen house flies. Considering the lack of screening is the cause of the flies (if there was full screening, flies could not get in unless they flew in when the door was opened), the question is whether the increased presence of house flies in the month of June — from ten to thirteen - is so serious and substantial as to result in the termination of this restaurant's tenancy, which has been on the premises since the early-to-mid 1980s. Moreover, the inspector considered the vermin violation "minor."

Based upon all the proofs submitted, this Court finds that the minor violation of having thirteen house flies during the month of June does not rise to the level of terminating this long-time tenancy. The case is dismissed.See 7 West Foods, Inc. v Forty-Seventh Fifth Company, 109 AD2d 658659, 486 NYS2d 246248 (1st Dept 1985) ("insubstantial breaches, consonant with the plaintiff's delicatessen business, would not warrant termination of the lease").