On February 10, 2011, Respondents, OFF BROADWAY BEANERY CORP. and BROADWAY BEANERY CORP. filed a motion to dismiss the Petition pursuant to CPLR § 3211(a)(7) for failing to state a cause of action and for the Court's lack of jurisdiction.

On January 28, 2011, Petitioner 23 Atlantic Avenue Associates, LLC, filed a petition for Non-Payment requesting final judgement, awarding possession of the premises thereof; fair value of use and occupancy; judgement for rent and additional rent in arrears against Respondents in the sum of $47,761.76 with interest on all the aforesaid charges from the due date of each such outstanding charge, all expenses for resuming or obtaining possession pursuant to Lease Paragraph "8" including, but in no way limited to, reasonable attorneys' fees and court costs and costs and disbursements therein.

An Affidavit of Service was submitted on February 3, 2011, stating Brian Som, who is a managing agent and authorized to accept notice, was personally served on February 1, 2011.

On February 7, 2011, Respondent submitted a verified answer, denying everything except that they are in possession of said premises. The answer also states that before the institution of this proceeding, payment was tendered and refused by Petitioner. The answer further states that payment was tendered and accepted subsequent to the institution of this proceeding. The answer further alleged that due to defective service of Notice of Petition and/or Predicate Notice required under the lease, this court lacks jurisdiction. Respondents counterclaim for not less than $200,000 for petitioner's willful and outrageous conduct. Respondents, on February 8, 2011, submitted a Motion to Dismiss upon the grounds that the court lacks jurisdiction.

A written rental agreement and Rider to Lease was made December 16, 2002 between OFF BROADWAY and ATLANTIC for an initial term of five (5) years commencing on [*2]December 2, 2002, with three (3) five (5) years options to renew. OFF BROADWAY and BROADWAY exercised the option to renew on November 29, 2006, which extended the Lease until November 30, 2012. BROADWAY AND OFF BROADWAY promised to pay ATLANTIC as rent during the current Lease year the sum of $5,970.22 per month and additional rent in advance on the first day of each month.

Respondents failed to pay rent for nine (9) months. By letter dated September 13, 2010, and sent by certified mail as required by ¶56 of the lease, Petitioner demanded rent from Respondents. A response letter dated September 17, 2010, Respondents acknowledged their default, offered to execute a Confession of Judgement, and offered to place a lien against certain real property.

As for the the Predicate Notice required under the lease, Respondents claim that the predicate notice demanding rent was not sent in the manner required by paragraph 56 of the lease. Plaintiff sent by certified mail the Notice to Respondent's attorney at his Rockville Centre address as opposed to his Valley Stream address. Respondents do not claim that they did not receive actual notice or were prejudiced by any deviation. The notice was actually received by Respondents and was never objected to during months of negotiations. Strict compliance with the lease's notice provisions was not required because Respondents do not claim that they did not receive actual notice or were prejudiced by the deviation. Iskalo Electric Tower, LLC v. Stantec Consulting Services, Inc., 79 AD3d 1605 [4th Dept. 2010]; Suarez v. Ingalls, 282 AD2d 599 [2d Dept. 2001].

The Motion to Dismiss states that Notice of Petition was improperly served because it was left at the bar and no follow up mailing was made as required by RPARL 735(b). The Notice of Petition and Petition were served by personal delivery to Brian Som. Under CPLR § 311(1), personal service upon a corporation is made by delivery "to an officer, director, managing or general agent. . . or to any other agent authorized by appointment or by law to receive service." Brian Som is an officer of the Respondent corporation. This court has previously held in 126 Spruce Street, LLC v. Club Central, LLC, that under RPAPL § 735, personal service is complete immediately upon personal delivery to the respondent, although proof of filing is required. 15 Misc 3d 538, 830 NYS2d 506 (NY Dist Ct, 2007). Therefore, because service of the Notice of Petition and Petition were made by personal delivery, no mailing is required according to RPARL §§ 735(1) and (2)(a).

Respondent's motion to dismiss is denied.

This case is set down for conference with clients on April 27, 2011, at 11:00 AM.

So Ordered:

/s/ Hon. Scott Fairgrieve

DISTRICT COURT JUDGE

Dated:April 14, 2011

CC:Stephen G. Reddan, Esq.

Dollinger, Gonski & Grossman [*3]

SF/mp