CLK/HP One Old Country Rd. LLC v Settlement Sys., Inc. (2013 NY Slip Op 50824(U))

CLK/HP One Old Country Rd. LLC v Settlement Sys., Inc.

2013 NY Slip Op 50824(U) [39 Misc 3d 1230(A)]

Decided on May 23, 2013

Dist Ct, Nassau County

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This opinion is uncorrected and will not be published in the printed Official Reports.

The following named papers numbered 1 to 4

submitted on this Motion on May 10, 2013

The petitioner commenced this Landlord/Tenant non-payment proceeding on March 20, 2013 by the service of a Notice of Petition and Petition to recover possession of the premises located at One Old Country Road, Carle Place, New York, 11514. The petitioner seeks a final judgment of possession, warrant of eviction and money judgment in the sum of $23,624.61, an award of attorney's fees pursuant to the written lease, plus costs and disbursements of this action.

The respondent moves for an order pursuant to CPLR 3211(a)(2) and (7) dismissing this proceeding upon the grounds that the three (3) day demand for rent served upon respondent is insufficient and defective. The petitioner opposes the instant motion. The respondent filed a Reply. [*2]

RPAPL §711(2) governs the procedures for a demand for rent. It states, in pertinent part, as follows:

A special proceeding may be maintained under this article upon the following grounds:

(2) the tenant has defaulted in the payment of rent, pursuant to the agreement under which the premises are held, and a demand of the rent has been made, or at least three days' notice in writing requiring, in the alternative, the payment of the rent, or possession of the premises, has been served upon him as prescribed in section 735. . .'

A statutory rent demand is one of the facts upon which a special proceeding is based (see RPAPL §741[4]; Garvey v Calder, 7 Misc 3d 130[A] [App Term, 9th & 10th Jud Dists 2005]). Absent proof of a verbal demand or a proper three day written demand a nonpayment proceeding is jurisdictionally defective and must be dismissed (see Matter of Salvatore and Catherine Pepe v Miller & Miller Consulting Actuaries, 221 AD2d 545 [2d Dept 1995]). A landlord must in the first instance both allege and prove that he has complied with the statutory conditions in order to become entitled to possession (see Solack Estates, Inc. v Goodman, 102 Misc 2d 504 [App Term, 1st Dept 1979]; Martine Associates LLC v Minck, 5 Misc 3d 61 [App Term, 2d Dept 2004]; Sycamore Associates, Inc. v Dietz, 8 Misc 3d 132 [A] [App, Term 9th & 10th Jud Dists 2005]).

The purpose of the demand requirement is to afford a tenant notice so that he or she may be able to remedy the default and prevent litigation(see 1675 Realty Co. v Quinones, 576 NYS2d 995 [Civ Ct, Bronx County 1991]). At a minimum, the landlord must inform the tenant of the particular period for which the rent is in default and the approximate good-faith sum of rent due (see Ranallo v Burns, 550 NYS2d 192 [3rd Dept 1990]).

If a written demand is made, as in the instant case, the demand must be served pursuant to the provisions of RPAPL §735 which requires the written notice be personally delivered to the respondent. If, after reasonable application, personal delivery of the demand cannot be effectuated, then the demand must be served by substituted service on a person of suitable age and discretion or by conspicuous placement on the entrance door of the premises and in addition by mailing to respondent both by registered or certified mail and by regular first class mail (RPAPL §735[1]).

Tenant failed to pay Petitioner rent and additional rent due and owing under the Lease in the aggregate amount of $23,624.61 due for the months of December 2012, [*3]January 2013 and February 2013, in the amount of $7,874.87 per month.

A copy of the Notice to Tenant and affidavit of service are collectively annexed hereto as Exhibit "B".

In support if its motion to dismiss, the respondent alleges that the three (3) day demand for rent is insufficient as petitioner relied upon Paragraph 16.02 of the lease which required ten (10) days notice, instead of three (3). The Court finds that the respondent's argument lacks merit.

Where a lease identifies a specific method for a demand for rent, the demand must be made according to the terms of the lease (see Hendrickson v Lexington Oil Company Inc., 41 AD2d 672 [2d Dept 1973]; Harris v Apolant, 5 Misc 3d 1009[A] [Nassau Dist Ct 2004]). Thus, in spite of the statutory authorization to make a rent demand verbally, the demand for rent must be made in writing if the lease so requires (see Margis Realty v Belaguer, 3/24/92 NYLJ 23, col. 2; [Civ Ct NY County]; Lenzo v Craig, 8/9/89 NYLJ 19, col.3 [Civ Ct Bronx County]).

In the instant case, the three (3) day demand for rent not only complies with RPAPL §711 in that it sufficiently details the amount of rent that is due and owing, it also complies with the terms of the written lease. Moreover, it was properly served in accordance with RPAPL §735 [see Affidavit of Service Annexed to Petition]. Consequently, the fact that the notice afforded the tenant more time than required by statute, does not invalidate the notice (see Minik v Park, 217 AD2d 489 [1st Dept 1995]).

In view of the foregoing, the respondent's motion to dismiss is hereby denied. Any remaining arguments advanced by respondent have been considered and found to lack merit.