Opinion
INDEX NO. LT 253-19
07-08-2019
2 Hamilton Avenue Co, Inc., c/o Sedgefield Management Ltd. Petitioner-Landlord, v. Operation Prom and John Doe and/or Jane Doe, Respondents-Tenants
CARL L. FINGER, ESQ. Finger & Finger, A Professional Corporation 158 Grand Street White Plains, NY 10601 Attorney for Petitioner ALBERT M. LEVI, ESQ. Levi Paul LLP 5911 Riverdale Avenue Bronx, NY 10471 Attorney for Respondent
Amended
DECISION AND ORDER CARL L. FINGER, ESQ.
Finger & Finger, A Professional Corporation
158 Grand Street
White Plains, NY 10601
Attorney for Petitioner ALBERT M. LEVI, ESQ.
Levi Paul LLP
5911 Riverdale Avenue
Bronx, NY 10471
Attorney for Respondent Kettner, J.:
In this commercial summary proceeding for non-payment and possession, a trial was held on June 3, 2019, at which time the Court reserved decision and afforded both parties the opportunity to submit post trial memoranda.
The amount set forth in the petition, dated February demanded the amount of $6,695.00 in past-due rent. The amount now allegedly owed is $12,051,00, representing past-due rent through the month of June, 2019.
Background
Petitioner originally commenced a previous summary proceeding ("The First Proceeding"), seeking the same relief as in the present case, on or about January 2, 2019. The Court (Carbone, J.) dismissed the action without prejudice, by decision and order dated April 1, 2019. Petitioner subsequently commenced the instant proceeding.
At the trial, the following was received into evidence
| Petitioner's Exhibit 1, | Lease between the Parties, dated7/31/17 for a two-year, one month term |
| Petitioner's Exhibit 2 | Rent Ledger for the months of 10/1/18 through6/1/19 |
| Respondent's Exhibit A | Notice of Petition and Petition, dated 2/8/19 andThree Day Notice to Pay ("The Second Proceeding"or "Instant Proceeding") |
| Respondent's Exhibit B-1Exhibit B-2Exhibit B-3 | Photo of mice droppings on window sillPhoto of water leak stainsPhoto of cockroach in premises |
| Respondent's Exhibit C | Notice of Petition and Petition, dated1/2/19 ("The First Proceeding") |
| Respondent's Exhibit D-1Exhibit D-2 | Letter dated 7/31/18 from respondentto petitioner requesting modification of leaseLetter dated 10/13/18, regardin© ) 12/31/18vacature of the premises. |
| Respondent's Exhibit E | Copy of text message, dated 1/7/19 betweenrespondent and "Judy" thesuper, advising of 1/6/19 vacatur ofpremises |
FACTS
The credible facts adduced at the non-jury trial, established the following facts, which are largely undisputed:
Petitioner leased commercial premises to respondent, non-profit 501-c organization for a term beginning July 1, 2017 and ending on July 31, 2019 with an initial monthly rent of $1,300.00 per month. The lease called for a monthly rental of $1,339.00 for the second year and $1,378.00 for the third year. Respondent testified that petitioner had originally promised them a particular office suite which petitioner was unable to deliver. Due to the substitution, respondent tried to "break" the lease, but was unsuccessful in doing so.
Respondent testified that she communicated directly with the superintendent, "Joe" by text regarding the problems they were experiencing at the premises, such as roof leaks, and bug infestation. Photos of the conditions were received into evidence detailing the conditions during the Spring and Summer of 2018. When the superintendent passed away, his widow, "Judy" took over his responsibilities and respondent communicated with her regarding matters involving the premises.
Due to loss of a significant grant and donor funding, the respondent requested a modification of the lease, (Exhibit C), which was denied. Subsequently, respondent sent petitioner a letter (Exhibit D), announcing their decision to vacate by the end of December, 2018.
On January 6, 2019, the respondents vacated the premises, one day after the superintendent, "Judy" informed them that the petitioner had filed a non-payment proceeding against them. ("The First Proceeding"). This text exchange was memorialized in a copy of the text message set forth in Respondent's Exhibit E.
After the first petition was dismissed without prejudice and respondent vacated the premises, the petitioner filed the instant non-payment proceeding seeking the same relief.
CONCLUSIONS OF LAW
Petitioner claims that respondent never properly terminated the lease, citing the fact that t the keys were never turned over and that the superintendent, "Judy" lacked any authority to accept a surrender of the premises.
The un-rebutted testimony demonstrated that the respondent vacated the premises after the first non-payment petition was filed on January 2, 2019 and that the first non-payment petition was dismissed without prejudice.
"[A] summary proceeding, being a possessory remedy, lies only against the tenant in possession and those in possession under the tenant", Park Prop. Dev. v Santos, 1 Misc3d 16, 767 NYS2d 558, citing Euclid Holding Co. v Schulte, 153 Misc 455, 461, revd on other grounds, 153 Misc 455, 461 (1934). To maintain a summary non-payment proceeding, an essential jurisdictional element requires that the respondent be in possession of the premises when the proceeding is commenced. First National City Bank v Wall Street Leasing Corp., 80 Misc2d 707, 363 NYS2d 699 (1974). The overwhelming evidence in the instant case established that the respondent vacated the premises prior to the filing of this action, thus divesting this Court of jurisdiction.
Petitioner's argument that there was no proper relinquishment by tenant and acceptance by the landlord constituting a valid surrender goes to the parties' substantive rights under the lease and misses the point. The issue here is purely jurisdictional and this Court cannot address the merits of the case. Simply put, a summary proceeding cannot lie where respondent did not physically possess the premises when the proceeding was commenced. The Court does note that petitioner is not without further remedy as it may seek relief in another forum under the terms of the lease.
Should the evidence support such a claim. --------
Accordingly, the matter is dismissed
The foregoing constitutes the Decision and Order of the Court. Dated: July 8, 2019
New Rochelle, New York
/s/_________
Hon. Susan I. Kettner
City Court Judge CITY COURT OF NEW ROCHELLE COUNTY OF WESTCHESTER: STATE OF NEW YORK 2 Hamilton Avenue Co. Inc c/o Sedgefield Management Ltd., 230 Winding Brook Rd., New Rochelle, NY 10804 Petitioner-Landlord, -against- Operation Prom and John and/or Jane Doe Unit/Apt. , 2 Hamilton Avenue, ste. 202-203 New Rochelle, New York 10801 Respondent-Tenant. Index No. LT-253-19
AFFIRMATION OF SERVICE
Albert M. Levi, Esq., an attorney duly admitted to practice before the courts of the State of New York, affirms the truth of the following under penalty of perjury:
1. I am the attorney for Respondent-Tenant Operation PROM in the above-captioned action.
2. On August 1, 2019, I served via regular mail a true and accurate copy of the Notice of Entry of Amended Decision and Order in the above-captioned action dated July 8, 2019 and a copy of the same Amended Decision and Order, upon the following:
Carl L. Finger, Esq.
Finger & Finger
A Professional Corporation
Attorneys for Petitioner-Landlord
158 Grand Street
White Plains, New York 10601
Dated: August 1, 2019
/s/_________
ALBERT M. LEVI