In this commercial non-payment proceeding, respondent-tenant Triplay, Inc. (Tenant) moves to dismiss the petition on the ground that the petition failed to allege that Petitioner [*2]complied with the requirements of Real Property Law § 235-e (d). Petitioner-Landlord 215 Dorchester Partners, LLC (Landlord) opposes the motion, arguing that Real Property Law § 235-e (d) does not apply to a commercial tenancy.

On January 7, 2020, Landlord commenced this non-payment proceeding against Tenant, alleging that Tenant is in possession of commercial premises located on the 18th floor of a building located at 215 Lexington Avenue, New York, New York, and that Tenant defaulted in payments of the rent, in the amount of $478,950.69 (see respondent's exhibit A in support of motion, notice of petition and petition). Paragraph 7 of the petition alleges, "At least fourteen days' notice in writing requiring, in the alternative, the payment of said $478,950.69, or the possession of the Premises, has been served upon Respondent as prescribed in RPAPL §735," and the fourteen-day notice was annexed to the petition as Exhibit A (id.). No other notices were annexed to the petition, and the petition does not allege that any other notices were served upon Tenant.

Instead of answering the petition, Tenant brought the instant motion to dismiss, which was originally returnable March 26, 2020. The motion was adjourned to June 1, 2020 and again to September 2, 2020, when it was marked fully submitted.

Tenant argues that the petition should be dismissed as defective because the petition failed to allege that Petitioner complied with Real Property Law § 235-e (d), which requires that, if a lessor (or its authorized agent) fails to receive payment for rent within five days of when rent is due under the lease, then the lessor (or its authorized agent) must send written notice, by certified mail, to the lessee of the failure to receive the rent payment (affirmation of Tenant's counsel ¶¶ 4-7).

In opposition, Landlord argues that Real Property Law § 235-e (d) does not apply to a commercial tenancy, citing 41 East 11th Street, LLC v WSIP Realty Corp. (66 Misc 3d 834 [Civ Ct, NY County 2020]) (affirmation of Landlord's counsel ¶¶ 5-6). Even if the statute applied, Landlord contends that the statute does not require that compliance be pleaded in the petition (id. ¶¶ 7, 11-14). Landlord argues that the Legislature did not intend to require that the petition plead compliance with Real Property Law § 235-e (d) because the statute provides that non-compliance may be raised as an affirmative defense (id. ¶ 14). In any event, the Landlord maintains that it had served such a notice on November 15, 2019 by certified mail (id. ¶ 10; see also petitioner's exhibit B in opposition).

In reply, Tenant points out that 41 East 11th Street, LLC is not binding or controlling authority because it was decided by a court of coordinate jurisdiction (reply affirmation of Tenant's counsel ¶ 5). Tenant argues that the only section of Real Property Law § 235-e which refers to "residential premises" is Real Property Law § 235-e (a) (id. ¶ 6). Tenant contends that Real Property Law § 235-e (d) necessarily applies to commercial premises because subdivisions (b), (c), and (d) do not specifically reference "residential premises" (id.). Tenant quotes from an article that purportedly appeared on Law360.com written by a landlord-tenant attorney, about amendments to Real Property § 235-e, which resulted from enactment of the Housing Stability and Tenant Protection Act of 2019 (L 2019 ch 36) (id. ¶ 7). Finally, Tenant argues that the fact that the Landlord mailed the five-day notice is evidence that the Landlord believed that Real Property Law § 235-e (d) applied here (id. ¶ 9).

The court agrees with the Landlord. Real Property Law § 235-e states:

"(a) Upon the receipt of the payment of rent for residential premises in the form of cash, or any instrument other than the personal check of the lessee, it shall be the duty of the lessor, or any agent of the lessor authorized to receive rent, to provide the lessee with a written receipt containing the following:

1. The date;

2. The amount;

3. The identity of the premises and period for which paid; and

4. The signature and title of the person receiving the rent.

(b) A lessee may request, in writing, that a lessor provide a receipt for rent paid by personal check. If such request is made, the lessor, or any agent of the lessor authorized to receive rent, shall provide the lessee with the receipt described in subdivision (a) of this section. Such request shall, unless otherwise specified by the lessee, remain in effect for the duration of such lessee's tenancy. The lessor shall maintain a record of all cash receipts for rent for at least three years.

(c) If a payment of rent is personally transmitted to a lessor, or an agent of a lessor authorized to receive rent, the receipt for such payment shall be issued immediately to a lessee. If a payment of rent is transmitted indirectly to a lessor, or an agent of a lessor authorized to receive rent, a lessee shall be provided with a receipt within fifteen days of such lessor or agent's receipt of a rent payment.

(d) If a lessor, or an agent of a lessor authorized to receive rent, fails to receive payment for rent within five days of the date specified in a lease agreement, such lessor or agent shall send the lessee, by certified mail, a written notice stating the failure to receive such rent payment. The failure of a lessor, or any agent of the lessor authorized to receive rent, to provide a lessee with a written notice of the nonpayment of rent may be used as an affirmative defense by such lessee in an eviction proceeding based on the nonpayment of rent."

In 41 East 11th Street, LLC, the court held, "Real Property Law § 235-e (d) is not applicable to commercial tenancies" (66 Misc 3d at 838). The court emphasized the language in Real Property § 235-e (a), which clearly applied to "rent for residential premises" and reasoned, "While each provision of RPL 235-e does not reiterate the fact that it only applies to residential tenancies, the intent seems clear as all the following provisions pertain to receipts for rent" (41 East 11th Street, LLC, 66 Misc 3d at 837). This reasoning is persuasive.

This court is not persuaded by Tenant's argument that the absence of any reference to "residential premises" in Real Property Law § 235-e (d) reflected the Legislature's intent to make subdivision (d) applicable to commercial tenancies.

"[A] statute must be construed as a whole and . . . its various sections must be considered together and with reference to each other. [T]he circumstances surrounding the statute's passage are a useful aid in understanding its meaning" (Colon v Martin, 35 NY3d 75, 78 [2020] [internal citations and quotation marks omitted]). By established rules of statutory construction, "[w]ords, phrases, and sentences of a statutory section should be interpreted with reference to the scheme of the entire section . . . and the meaning of a single section may not be determined by splitting it [*3]up into several parts" (People v Odum, 31 NY3d 344, 351 [2018], quoting McKinney's Cons Laws of NY, Book 1, Statutes § 97, Comment at 213—214, 216; see also Matter of John P. v Whalen, 54 NY2d 89, 96-97 [1981] [all parts of a statute are to be read together and interpreted with reference to the scheme of the entire section]).

Prior to the 2019 amendments to Real Property Law § 235-e, the former statute read:

"(a) Upon the receipt of rent for residential premises in the form of cash or any instrument other than the personal check of the tenant, it shall be the duty of the landlord to provide the payor with a written receipt containing the following:

1. The date;

2. The amount;

3. The identity of the premises and period for which paid; and

4. The signature and title of the person receiving the rent.

(b) Where a tenant, in writing, requests that a landlord provide a receipt for rent paid by personal check, it shall be the duty of the landlord to provide the payor with the receipt described in subdivision (a) of this section for each such request made in writing" (former Real Property Law § 235-e [West 2006]).

The former statute clearly applied to residential tenancies, for former Real Property § 235-e (a) applied to "the receipt of rent for residential premises," and subdivision (b) referred to the receipt "described in subdivision (a)." In discussing the legislative history of the former statute, one court stated, "In urging the Governor to approve the bill, Attorney General Robert Abrams suggested that the law 'affords tenants who pay their rent by cash increased protection in the form of a legible payment record to protect against a landlord's possible harassment or faulty record keeping'" (Robinson v Robles, 28 Misc 3d 868, 874-75 [Rochester City Ct 2010], quoting Mem of Atty Gen, Bill Jacket, L 1981, ch 822).

The Housing Stability and Tenant Protection Act of 2019 (L 2019 ch 36) revised and added language in subdivisions (a) and (b) and added subdivisions (c) and (d) to Real Property Law § 235-e, among other things. The amendments to Real Property Law § 235-e did not expressly refer to commercial premises. Given that the statutory scheme applied to residential premises prior to the amendments, it therefore follows that the additional subdivisions must be read as part of the statutory scheme that governs residential premises, in the absence of express language to the contrary. Thus, Real Property Law § 235-e (d) must be read together with reference to "residential premises" set forth in Real Property Law § 235-e (a).

The Landlord is not estopped from arguing that Real Property Law § 235-e (d) does not apply to commercial tenancies because it purportedly served a notice upon Tenant that complied with Real Property Law § 235-e (d). In the article which Tenant cites, the article pointed out ambiguity as to whether Real Property Law § 235-e (d) could be read to apply to commercial tenancies. Serving such a notice out of an abundance of caution in the face of uncertain applicability does not amount to a concession that the statute applied to commercial tenancies.

Therefore, Tenant's motion to dismiss is denied. In light of the court's ruling that Real Property Law § 235-e (d) does not apply to commercial tenancies, this court need not address the [*4]secondary issue of whether the non-payment petition should have alleged that the Landlord complied with the statute. Neither does the court need to address Landlord's alternative argument that, assuming the statute applied, the petition need not be dismissed because the Landlord had complied with the statute (and therefore could amend the petition to allege compliance).

Tenant must answer the petition within 10 days of service of notice of entry of this decision and order (CPLR 3211 [f]).

The parties are reminded that this matter has been adjourned in Part 52 to October 28, 2020 at 11 a.m. for all purposes.

Upon the foregoing cited papers, it is hereby ORDERED that respondent's motion to dismiss is denied; and it is further

ORDRED that respondent is directed to answer the petition within 10 days of service of a copy of this decision and order with notice of entry.

This constitutes the decision and order of the court.