Opinion
No. 87058/15.
04-05-2016
1981 OCEAN AVENUE REALTY, LLC, Petitioner–Landlord, v. STATION MANAGEMENT SERVICES INC. Entire Premises 1981 Ocean Avenue Brooklyn, N.Y. 11230, Respondent–Occupant, Ocean Auto Center Inc; et al Respondent–Undertenants, Respondent.
Domenick Napoletano, Esq., Brooklyn, for Petitioner. For Ocean Auto Center, Inc., Stern & Stern, Esqs., Brooklyn, For Caton Gas Corp., N. Richard Wool, Esq., The Wool Law Group PLLC, Plainview, for Respondents.
Domenick Napoletano, Esq., Brooklyn, for Petitioner.
For Ocean Auto Center, Inc., Stern & Stern, Esqs., Brooklyn, For Caton Gas Corp., N. Richard Wool, Esq., The Wool Law Group PLLC, Plainview, for Respondents.
KATHERINE A. LEVINE, J.
This case raises the issue of whether a petition complies with RPAPL § 741(3) where its description of the premises adequately apprises the marshal of the physical location of the respondent occupant but does not further delineate which portions of the property the sub-subtenants occupy.
In this summary holdover proceeding, petitioner/landlord 1981 Ocean Avenue Realty Inc. (“petitioner” or “landlord”) seeks to recover the “ENTIRE PREMISES,” located at and known as 1981 Ocean Ave, Brooklyn, from the respondent occupant Station Management Services, Inc. (“respondent,” “tenant” or “Station Management”) and various undertenants on the ground that the lease was terminated by notice effective August 3, 2015. The 10 day Notice to Cure dated June 25, 2015, alerted the respondent and subtenants that they were “violating a substantial obligation of your tenancy” by failing to comply with paragraph 31a of the Rider to the lease, which required them to obtain and maintain fire insurance covering the building and improvement on the premises, and failing to comply with 31c of the Rider which required them to provide public liability insurance policies covering the subject premises and adjacent sidewalk. The Notice of Termination, dated July 15, 2015, concerning the entire premises, informed the tenant and subtenants that effective August 3, 2015, their tenancy would be terminated for failure to comply with the Notice to Cure. It is not disputed that Service Management failed to appear and answer in this proceeding and is in default.
Respondent subtenant Ocean Auto Center (“Auto Center”) moved to dismiss on the grounds that the petition failed “to properly or adequately describe the premises for which possession is sought.” Respondent subtenant David Rishty (“Rishty”) moved to dismiss the petition for failure to name a necessary party—1981 Gas Corp (“Gas Corp”)—which is an occupant of the premises, and because Supreme Court Kings County issued a stay on July 21, 2015, precluding petitioner from terminating the lease between petitioner and the Gas Corp. or from commencing or maintaining any summary proceeding to recover possession of such premises.
On June 2, 1986, the former owner of the premises, Richard Schenkel (“Schenkel”), entered into a lease with Station Management, as tenant, for the commercial property located at 1981 Ocean Avenue. The lease agreement did not delineate or subdivide the property and identifies the business to be operated at the premises as a “gasoline service station.” On October 1, 2007, Station Management, represented as owner, entered into a sublease with respondent subtenant Caton Gas Corp. (“Caton Gas”), for a gasoline service station located in the building known as “1981 Ocean Ave.” The sublease and rider provided that the premises was to be used strictly as a gas station, convenience store and automotive repair shop. On that same date, Caton Gas, as sub-landlord, entered into a sub-lease with sub-subtenant Ocean Auto Center. Unlike the previous prime and sublease, the sub-sublease only pertained to a portion of the property—the “motor vehicle repair shop and parking area near and around the repair shop bays.” It further noted that the “demised premises may be used only for the repair of motor vehicles and for sale of used cars.” The sub-sublease between Caton Gas Corp. and 1981 Gas Corp. is not attached to any of the papers.
RPAPL § 741(3), entitled “Contents of Petition,” mandates that the petition describe the premises from which removal is sought. The petition must accurately describe the “exact location of the premises” in sufficient detail so that a marshal, when executing the warrant of eviction, may locate the premises and effect an eviction without additional information. Sixth St. Community Ctr, Inc. v. Episcopal Social Services, 2008 N.Y. Slip Op 51151(U), 19 Misc.3d 1143(a)(Civil Ct. N.Y. Co.2008). See, U.S. Airways, Inc v. Everything Yogurt Brands, Inc., 2008 N.Y. Slip Op 50279(U), 18 Misc.3d 136(A) (App.Term, 2nd Dept.2008) ; Elui Realty Corp v. Java New York Ltd., 12 Misc.3d 336, 337 (Civ.Ct., Kings Co.2006). The description of the premises cannot be vague, ambiguous or inaccurate. Sixth Street Community Center, Inc., supra.
A summary proceeding is governed entirely by statute and “there must be strict compliance with the statutory requirements.” 300 West Realty Co. v. Wood, 69 Misc.2d 580, 581 (Civ. Ct N.Y. Co.1971). Failure to describe the premises in accordance with the mandate of RPAPL § 741(3) is grounds for dismissal of the petition, as a defective description “affects the very essence of the proceeding.” Papacostopulus v. Morrelli, 122 Misc.2d 938 (Civ.Ct. Kings Co.1984). See, Clarke v. Wallace Oil Co. Inc., 284 A.D.2d 492 (2nd Dept.2001) ; US Airways, Inc supra, 18 Misc.3d at 4; Saba Realty Partners LLC v. Apex Limousines Inc, 2011 N.Y. Slip Op 51497(U), 32 Misc.3d 1229(A)(Sup. Ct., Kings Co.2011). The courts will not allow the petition to be amended unless the problem with the description was of a de minimus or trivial nature. Sixth Street Community Center, supra.
Courts have dismissed petitions when the description of the premises was vague or incomplete, or was not accompanied by a diagram or plans of the floor showing the tenant's exact location. See, Sixth St. Community Ctr, Inc. supra (Petition erroneously described premises as all rooms in building when petitioner's exhibits revealed that demised premises did not occupy entire building but rather three rooms on first floor and some storage space in basement); Vornado Two Penn Property, LLC v. XLPC Corp, 2008 N.Y. Slip Op 50138(U), 18 Misc.3d 1119(A) (Civ.Ct., N.Y. Co.2008) (Petition's description as “Two Penn Plaza, portion of the ground floor,” as identified by two crosshatched areas in annexed exhibit, too vague to alert marshal to the premises that were to be recovered); Elui Realty Corp., supra (Description of “part of the 2nd flr bet. Building A & B, at 14 Whale Square” found inadequate since the store's number or any other designation as to the exact address of the store was missing).
Respondent Ocean Auto Center contends that the petition is defective because it fails to properly describe and delineate the half of the property occupied by Ocean Auto and the other half occupied by 1981 Gas Corp. which “has not even been sued.” Ocean Auto Center relies upon Elui Realty Corp, supra where the court found the description of “part of the 2nd flr bet. Building A & B, at 14 Whale Square” to be inadequate since the store's number or any designation as to the exact address of the store was missing. However, Elui is distinguishable since the landlord was only suing the respondent tenant, and not the three other tenants who had stores on the second floor. Here, there is only one prime tenant, Station Management, which occupies the entire premises. Since Station Management has already defaulted, it is irrelevant that Ocean Auto allegedly only occupies a portion of the property.
As a general rule, where a landlord and prime tenant agree to voluntarily terminate the paramount lease, the subtenant becomes the immediate tenant of the original lessor, and the interest of the subtenant and terms of the sublease continue as if no termination occurred. 380 Yorktown Food Corp. v. 380 Downing Drive, LLC, 107 AD3d 786,787 (2d Dept.2013), citing to Goldcrest Transp. v. Across Am. Leasing Corp., 298 A.D.2d 494,495 (2d Dept 2002). However, “(b)ecause a sublease is dependent upon and limited by the terms and conditions of the paramount lease from which it is carved, a subtenancy may be terminated by the expiration of the term of the prime tenant, or a re-entry by the landlord for a condition broken. See, Goldcrest Transp., supra at 496 (Subtenant was evicted because its interest in the premises was terminated as result of the breach of the paramount lease). See, Precision Dynamics Corp. v. Retailers Representatives, 120 Misc.2d 180, 182 (Civil Ct, N.Y. Co.1983).
In 380 Yorktown Food Corp, supra, the plaintiff subtenant commenced an action against the landlord seeking a declaration that it could remain in possession of the leased property after the prime tenant A & P filed for bankruptcy, breached the overlease and stipulated that the defendant landlord was entitled to reenter and re-possess the premises. The Second Department affirmed the lower court ruling that the subtenant was not entitled to remain in possession since plaintiff's subtenancy had been terminated based upon the ruling in Goldcrest, supra, that a sublease was dependent and limited by the terms of the paramount lease from which it was carved. 107 AD3d at 788. See also, Brooklyn Livingston, LLC v. Peguero, 2014 N.Y. Slip Op. 51638(U) (Civ.Ct., Kings Cty.2014) (Subtenants could not continue in possession absent consent of the landlord because the prime tenant breached the prime lease by nonpayment of rent).
In a case almost exactly on point, UNS Mgt. Assocs., Ltd. v. JCH, 2008 N.Y. Slip Op 51329(U) (Nassau Cty Dist. Ct.2008), the respondent tenant argued that the petition was defective under RPAPL § 741(3) because it failed to set forth a proper description of the premises. The respondent attempted to equate the deficient description in Elui, supra, where all the petition said was “part of the second floor” with the description in its case—“Suite 125 at 2545 Hempstead Turnpike, East Meadow.” The court denied the tenant's motion, distinguishing the confusion that would be wrought by Elui's description, where there were three other tenants who were not part of the proceeding, on the second floor, with the case before it where all of the occupants in Suite 125—the tenant and subtenants were designated as respondents. As such, the court found that the description—Suite 125—was not so incomplete or vague as to result in any confusion as to who was a respondent in the summary proceeding,
Similarly, in the instant matter, the description of the property as the “entire premises” is not inadequate or confusing since the holdover proceeding is against both the tenant aud subtenants, all of whom occupy the same property. The paramount lease between the landlord and tenant Station Management lists the commercial property as being located at 1981 Ocean Avenue and does not delineate or subdivide the property. The sublease between Station Management and Ocean Auto Center does not designate or specify an area by specific dimensions or alternate address but simply lists the property with the same exact address as the paramount lease—1981 Ocean Ave. Schedule A annexed to the paramount lease describes the premises located at 1981 Ocean Avenue as containing “all that certain plot, place or parcel of land, with the building and improvements thereon erected ...” and goes on to describe the exact parameters of the parcel of land. The predicate for the holdover is Station Management's breach of the paramount lease by failing to obtain and maintain fire insurance and public liability insurance policies covering the building and improvement on the premises
Finally, the court notes that Ocean Auto Center has no standing to raise concerns that an entity other than itself might be swept up by the marshal due to the “overbroad” nature of the notice. Any concern that the marshal might also padlock or seize the gas station should be raised by Rishty. The Court notes parenthetically that there is no danger that 1981 Gas Corp.'s occupancy of the premises will be terminated since it was not named by petitioner as a party to this proceeding in conformity with the stay issued by Supreme Court, Kings County. In fact, petitioner acted in strict conformity with the stay by not naming 1981 Gas Corp. as a party.
In light of the foregoing, both motions are denied. This constitutes the Decision and Order of the Court.