District Court of Suffolk County, Third District, February 8, 2019

John A. Reno, Deer Park, for petitioner.

Richard Bruce Rosenthal, Kew Gardens, for respondents.

The above captioned petitioner commenced this nonpayment summary proceeding seeking to dispossess the respondent's horse from a stable stall. The respondent interposed a written answer dated January 19, 2019, asserting multiple affirmative defenses and counterclaims together with a jury demand. At the initial appearance the parties orally stipulated to the fact that the petitioner's rent demand was made via an unresponded-to text as well as a voicemail message; and asked the court to address the issue if such a rent demand meets the requirements of Real Property Actions and Proceedings Law § 711 (2).

RPAPL 711 (2) provides as follows:

"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 the possession of the premises, has been served upon him as prescribed in section 735."

Starting this inquiry with the premise that oral demands are statutorily authorized (Merida v Morosoff, 51 Misc 3d 1209[A], 2016 NY Slip Op 50513[U] [Nassau Dist Ct 2016]; 1675 Realty Co. v Quinones, 152 Misc 2d 393 [Civ Ct, Bronx County 1991]), the court's threshold issue to resolve is by what manner may a landlord make an oral rent demand. New York courts first recognized oral rent demands via a telephone as legally sufficient in 1930^[FN1] (Hutton v Malkin, 138 Misc 560 [App Term, 1st Dept 1930]; see also 104 Realty LLC v Brown, 41 Misc 3d 1228[A], 2013 NY Slip Op 51867[U] [Civ Ct, Kings County 2013], citing Schwartz v Weiss-Newell, 87 Misc 2d 558 [Civ Ct, NY County 1976]). An oral demand for rent has been codified by the courts to have to be "personal" in nature (see Hotel Concord, Inc. v Callaghan, 161 Misc 764 [App Term, 1st Dept 1936]). A personal demand can be made face-to-face or over the telephone if the communication is between the landlord and the tenant (104 Realty LLC v Brown, citing Schwartz v Weiss-Newell, citing generally Tolman v Heading, 11 App Div 264 [3d Dept 1896]).{**63 Misc 3d at 335}

It is undisputed that the landlord utilized a telephone to make his oral demand. The distinction between the matter at bar and the aforementioned precedent is that the landlord did not actually speak to the tenant in leaving a text and voicemail. This begs the question, is an unanswered text and voicemail sufficiently personal in nature to satisfy the section 711 (2) requirements? This court finds they are not.^[FN2] The court, in a summary proceeding, has an "obligation to determine whether the tenant received sufficient notice of the nature of the alleged default . . . [and] must fairly afford the tenant, at least, actual notice of the alleged amount due" (25-35 Equity Holdings, Inc. v Toles, 2001 NY Slip Op 40036[U], *5 [Civ Ct, NY County 2000]). The Equity Holdings court goes on to opine:

"In the case of an oral demand, the allegation that the demand was made assumes that the tenant received the requisite notice. This assumption reflects a legislative 'preference for a demand to be personally made,' Zenila Realty v. Masterandrea, 123 Misc. 2d at 3, a practical recognition that 'in the personal demand, the landlord or his agent is immediately available to the tenant to answer any of the tenant's questions with respect to the demand for rent or to enlarge upon the practical ramifications of a continued default in payment, if the tenant so inquires' " (id. at *6 [emphasis added]).

It is the absence of the ability to establish that the tenant actually received the text or the voicemail that dooms this petition. To be "personal" the parties must be in common communication sufficient to allow for the tenant to make reasonable inquiry of the default and be afforded an opportunity to cure.

A rent demand is a condition precedent to bringing a nonpayment summary proceeding (see Oakwood Terrace Hous. Corp. v Monk, 50 Misc 3d 141[A], 2016 NY Slip Op 50198[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2016]). Accordingly, the landlord's section 711 (2) demand is deficient and this summary proceeding petition is dismissed.