City Court of Cohoes, December 11, 2019

R. Christopher Dempf, Albany, for petitioner.

Gianna Anthony, respondent pro se.

Nichole Rieffannacht, respondent pro se.

Laquavia Weaver, respondent pro se.

Armani Fason, respondent pro se.

Kathleen McKenna, respondent pro se.

Anthony Wiggins, respondent pro se.

Robert Brundidge, respondent pro se.

Christopher Haynes, respondent pro se.

Lita Johnson, respondent pro se.

Petitioner 25-31 Ontario Street (landlord) brought a nonpayment proceeding against Gianna Anthony, Nichole Rieffannacht, Laquavia Weaver, Armani Fason, Kathleen McKenna, Anthony Wiggins, Robert Brundidge, Christopher Haynes, and Lita Johnson (tenants) pursuant to RPAPL 711 (2). The tenants appeared and the court received an oral answer from each tenant (RPAPL 743; 22 NYCRR 210.7 [a]). The nearly universal defense was that the apartment building had gone into foreclosure and that the conditions both in the common areas of the building and inside individual apartments had sunk to unacceptable levels of disrepair. In essence, the tenants asserted that the landlord had breached the warranty of habitability (Real Property Law § 235-B). In addition, the tenants made a motion to dismiss the action based upon a defective 14-day written demand for rent.

[1] To maintain a special proceeding under RPAPL 711 (2), a landlord must prove three elements: (1) a rental agreement concerning the premises between the landlord and tenant; (2) the tenant has defaulted in the payment of rent; and (3) prior to commencing the action, the landlord has properly served a written demand for the payment of rent or the surrender of the premises upon at least 14 days' notice.

Each tenant received a document entitled "Demand for Payment of Rent and Notice to Quit" which bore the date of September 13, 2019—a rent demand. The demand set forth the months that the tenant had not paid rent and the total amount owed. Further, the rent demand contained the following admonishment: the tenant had "to [either] pay [the stated arrears] on or [*2]before September 30, 2019 or . . . surrender up the possession of the premises." Failure of the tenant to pay or surrender would, according to the demand, result in the landlord seeking a court ordered eviction.

The problem is not with the contents of the document, which are fine, but the timing of its service. The landlord delivered the rent demand personally to tenants Haynes, Johnson, Anthony, Rieffannacht, Weaver, McKenna and Fason on September 17, 2019. The rent demand was served on a person{**66 Misc 3d at 569} of suitable age and discretion who resided in the apartment with tenants Wiggins and Brundidge followed by certified mailing of the demand that same day. Thus, all the tenants were served on September 17 with a demand to pay the rent by September 30.

The question is whether the notice gave the tenants 13 or 14 days to pay the back rent. It depends; if September 17 counts as a day towards fulfilling the notice requirement, then the tenants had the 14 days required by RPAPL 711 (2). In contrast, if the notice clock started ticking on September 18 (the day after service), then the tenants had only 13 days of notice to pay rent or surrender their apartment. This part of the dispute is easily resolved. General Construction Law § 20 provides, in pertinent part, "In computing any specified period of time from a specified event, the day upon which the event happens is deemed the day from which the reckoning is made. The day from which any specified period of time is reckoned shall be excluded in making the reckoning." This means that the day of service does not count, so the tenants had only 13 days rather than the required 14 days to pay rent or surrender the apartment.

The landlord raises two defenses. First, it points out that the lease provides for a mere three-day notice to pay arrears as a precondition to commencing an eviction proceeding. Thus, the landlord argues that the three-day notice lease provision constitutes a waiver by the tenants of the 14-day notice required by RPAPL 711 (2).

Generally, all rights to which a person is legally entitled are waivable, "whether secured to him by contract, conferred upon him by statute or guaranteed him by the Constitution" (People v Ventura, 139 AD2d 196, 201 [1st Dept 1988]). There is nothing inherently wrong or unconscionable about waiving rights; it occurs daily both inside and outside the courtroom, and to the extent some courts have suggested otherwise, that analysis will not be employed here (see McCormick v Resurrection Homes, 38 Misc 3d 847, 851 [Civ Ct, Kings County 2012]). Additionally, the truncated notice provision is not per se illegal. Waivers that endanger the public's health, safety or moral welfare are void as against public policy (see e.g. Rosenthal v Bologna, 211 AD2d 436, 438 [1st Dept 1995]). A notice provision that reduces the time a tenant must own up to her rent obligation is largely a private matter and does not touch those core societal issues of health, safety and moral welfare.{**66 Misc 3d at 570}

Moreover, a free people have the right to govern their legal relationships by private agreement. Indeed, "the liberty . . . guaranteed [by the Constitution], . . . [w]ithout doubt, . . . denotes not merely freedom from bodily restraint but also the right of the individual to contract" (Meyer v Nebraska, 262 US 390, 399 [1923]). It has long been noted that the legislature ought not to be presumed to have impaired the right to contract "without very strong and direct expressions of such an intention" (Powers v Bergen, 6 NY 358, 367 [1852]). This is a fine articulation of a stabilizing statutory canon of interpretation which instructs a court not to construe a statute to limit common-law rights, like the right to contract, without the legislature explicitly saying so (cf. Hechter v New York Life Ins. Co., 46 NY2d 34, 39 [1978]).

In the arena of landlord tenant relations, where the legislature has chosen to limit the [*3]legality of lease provisions that waive a statutory right, it has plainly specified its intention (see e.g. RPAPL 702 [rendering impotent any provision of a lease that waives the definition of rent]; Real Property Law §§ 226-c [prohibiting any lease term that shortens statutory notice for non-renewal of tenancy], 227-c [voiding any lease provision that limits the statutory right of domestic violence victims to cancel the lease], 235-B [nullifying any part of a lease agreement that waives a tenant's protections guaranteed by the warranty of habitability], 226-b [making unenforceable any lease clause that limits the tenant's statutory ability to sublet his apartment]). Unlike other provisions, nowhere in RPAPL article 7 nor in Real Property Law article 7 did the legislature make the 14-day notice provision inviolate. Thus, the lease's three-day notice provision is not forbade by statute.

Before getting to the resolution of the matter, another argument raised by the landlord should be noted. The landlord argues that even if the lease provision is unenforceable, the tenants were not prejudiced by receiving a 13-day notice rather than a 14-day notice. This argument is a strong one. The landlord notes that while the notices were served in September, the action was not commenced until December. Thus, the tenants had plenty of time to pay if they intended to make good on the arrears. Moreover, the tenants told the court that they had decided to withhold rent based upon warranty of habitability issues, meaning that the tenants lacked any intention to pay until the landlord made repairs that in their estimation brought the building in line with the required standards of{**66 Misc 3d at 571} upkeep. Thus, the tenants could have had (and did have) months of notice and they still would not have paid arrears. It makes perfect sense to conclude, as the landlord urges, that the tenants suffered no harm because the landlord missed the notice requirement by a day.

The fundamental problem for the landlord is that it is looking at the matter through the wrong end of the telescope. The landlord's arguments alternatively focus upon the legality of the tenants, via contract, waiving their right to a 14-day notice and any ensuing prejudice suffered by the tenants for a de minimis defect in the statutory notice. However, it is not the tenants' right that is at issue here. RPAPL article 7 is a grant from the legislature to landlords to bypass the lengthy and unwieldly common-law ejection proceeding (Zenila Realty Corp. v Masterandrea, 123 Misc 2d 1, 4 [Civ Ct, NY County 1984]; Columbus Prop. v ISKS Realty Corp., 163 Misc 2d 446, 448 [Civ Ct, NY County 1994]).

Prior to 1820 the only remedy which a landlord had to recover possession of property was an ejectment action—which was "an expensive and dilatory proceeding which in many instances amounted to a denial of justice" (Reich v Cochran, 201 NY 450, 453-454 [1911]). Significantly, delays caused social breakdowns by "prompt[ing] landlords to short circuit the judicial process by resort to self-help" (Velazquez v Thompson, 451 F2d 202, 204 [2d Cir 1971] [internal quotation marks omitted]). Therefore, nonpayment summary proceedings provided an important "right of the landlord to the immediate possession of his real property" (Poulakas v Ortiz, 25 Misc 3d 717, 724-725 [Civ Ct, Kings County 2009] [emphasis added and citations and internal quotation marks omitted]).

Since RPAPL 711 (2) represents a special benefit given to landlords, a landlord taking advantage of the statute, unsurprisingly, must meet all the criteria set forth in the statute. Hence, the familiar mantra that because "[a] summary . . . proceeding[ ] [is a] special proceeding[ ] governed entirely by statute . . . there must be strict compliance with the statutory requirements" (Matter of Cat Hollow Estates, Inc. v Savoia, 46 AD3d 1293, 1294 [3d Dept 2007] [internal quotation marks omitted]).

When properly focused, the determination of the notice issue is straightforward—the [*4]landlord lacks the power to override the legislature and to alter the elements of a special proceeding. That is, the landlord may not create through a lease provision{**66 Misc 3d at 572} a more favorable cause of action than given to it by the legislature. This is not to say that the 14-day notice may never be waived. At the time of the answer, a tenant may concede or waive the predicate notice, even if the tenant has a viable defense on that ground. However, a waiver executed prior to the commencement of the special proceeding is an ineffective method to change statutory notice requirements. The court, therefore, finds that the petition in this case is defective.

[2] As previously observed, the lack of proper notice made no difference to the tenants in this case; the tenants withheld rent because the landlord breached its duty to maintain the building in a habitable condition. Since tenants have suffered no harm by the defective 14-day notice, the court will stay the matter until January 6, 2020 (CPLR 2201; see also Thurcon Dev. Co. v Yacker, 173 Misc 2d 296, 299 [Civ Ct, NY County 1997]). A stay, rather than a dismissal, serves the interest of justice because any delay of the hearing harms the tenants by leaving habitability issues unaddressed.

During the stay, the landlord may serve a new notice that meets the mandate of RPAPL 711 (2). If the landlord completes service of a proper rent demand on or before December 22, 2019, the court will grant a motion nunc pro tunc to amend the pleading and allow the case to proceed to hearing to address the warranty of habitability issues raised by the tenants. If the landlord ignores its statutory duty to serve a proper rent demand, the court will dismiss the petition with prejudice.