| 200 W. 112th St. HDFC v 1842 7th Ave. Delicatessen Corp. |
| 2011 NY Slip Op 50101(U) [30 Misc 3d 1216(A)] |
| Decided on January 31, 2011 |
| Civil Court Of The City Of New York, New York County |
| Mendez, 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
200 West 112TH Street
HDFC, Plaintiff(s)/, Petitioner(s),
against 1842 7th Avenue Delicatessen Corp., Defendant(s)/, Respondent(s). |
Upon a reading of the foregoing cited papers on this motion for summary judgment dismissing this Commercial Summary Holdover Proceeding, it is the decision and order of this court that the motion is granted and the petition is dismissed.
In this Commercial Summary Holdover Proceeding Respondent moves for summary
judgment dismissing the petition for failure to serve a notice to cure and for failure to allege in
the petition that there was service of a notice to cure or to attach an affidavit of service of the
same . Petitioner opposes the motion alleging that there was service of a notice to Cure
( see Exh. 2 opposition papers) and that the acts as alleged by the petitioner do not
rise to a level of a conditional limitation.
The lease in its paragraph Twelfth states the manner in which notices must be served. It states: " any notice or demand which under the terms of this lease or under any statute must or may be given or made by the parties hereto shall be in writing and shall be given or made by [*2]mailing the same by certified or registered mail addressed to the respective parties at the addresses set forth in this lease".
The purported notice to cure dated January 20, 2010 does not state the manner it was served. Petitioner does not attach to its opposition papers or to the petition an affidavit of service detailing the manner of service of the notice to cure or that it was served in accordance with the terms of the lease. When the written lease between the parties contains requirements for service, the lease provisions must be complied with for service to be proper ( 496 Broadway Realty LLC., v. Kyung Sik Kim, 18 Misc 3d 1119(A), 856 N.Y.S. 2d 498 [NY Civ. Ct. 2008];Bogatz v. Extra Touch International, Inc., 179 Misc 2d 1029, 687 N.Y.S. 2d 558 [Civ. Ct. Kings 1999]; Century Paramount Hotel v. Rock Land corp., 68 Misc 2d 603, 327 N.Y.S. 2d 695[1971];Scherer, Residential Landlord Tenant Law §8:243).
The petition must allege that the appropriate predicate notices have been served and contain
details of the service or have a copy of the appropriate predicate notice attached
( Scherer, Residential Landlord Tenant Law § 7:139; Kentpark Realty Corp,. V.
Lasertone Corp., 3 Misc 3d 28, 779 N.Y.S. 2d 324 [App. Term 2nd. 2004]). Failure to set forth
facts in the petition regarding service of the predicate notices renders the petition deficient under
RPAPL § 741 (4) which requires that "the petition state the facts upon which the special
proceeding is based."
There was no mention of service of the notice to cure in the petition, there was no affidavit of service of the notice to cure attached to the petition. The notice of termination did not make any mention of service of the notice to cure. Failure to allege that the notice to cure was served and give the details of its service render the petition defective and it must be dismissed.
Accordingly, for the foregoing stated reasons it is the decision and order of this court that Respondent's motion for summary judgment is granted, the petition is dismissed.
This constitutes the decision and order of this court.
Dated: January 31, 2011_____________________________
Manuel J. Mendez
Judge Civil Court