Opinion
61467/2004.
Decided April 22, 2004.
Donald Eng Esq., New York, NY, for Petitioner,
Urban S. Mulvehill Esq., O'Neill, DiManno Kelly, New York, NY, for Respondent.
Respondent moves to dismiss or for summary judgment dismissing this commercial nonpayment proceeding on two grounds. Petitioner failed to (1) complete service of the rent demand by filing the affidavit of service in court within three days after service, as required by R.P.A.P.L. §§ 711(2) and 735(2), and (2) serve a notice providing five days to cure the nonpayment of rent, as required by the parties' lease ¶ 17(c). C.P.L.R. §§ 3211(a)(7) and (8), 3212(b). Upon oral argument April 22, 2004, for the reasons explained below, the court concludes that petitioner complied with the statutory and lease requirements and therefore denies respondent's motion in all respects.
I. UNDISPUTED FACTS
Petitioner served its written rent demand by substitute service, including the required follow-up mailing, Monday, March 8, 2004. Petitioner filed an affidavit of service of the rent demand in court as part of the petition Friday, March 12, 2004.
The parties' lease ¶ 17(c) for the premises respondent rents from petitioner provides:
Tenant shall not be deemed to be in default pursuant to this Lease by reason of its failure to pay rent unless Owner shall give Tenant notice of such failure and Tenant fails to cure such failure to pay rent within five days thereafter.
Aff. of Ahmed Kalifa, Ex. C ¶ 17(c). Paragraph 17(1) pertaining to any "default pursuant to this Lease," to which subparagraph (c) adds a provision for defaults in fulfilling the covenant to pay rent, Kalifa Aff., Ex. C ¶ 17(c), provides that upon service of the notice to cure and expiration of the five days without a cure, the lease will terminate. Petitioner never served a notice that it was treating respondent's failure to pay rent as a default under the lease and giving respondent five days to cure the default to avoid the lease's cancellation.
II. APPLICATION OF THE REQUIREMENTS FOR COMPLETING SERVICE AND FILING AN AFFIDAVIT OF SERVICE TO RENT DEMANDS
A landlord may not maintain a summary proceeding for a tenant's nonpayment of rent unless, before commencing the proceeding:
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.
R.P.A.P.L. § 711(2). R.P.A.P.L. § 735 prescribes how the notice of petition and petition must be served and that these pleadings "with proof of service thereof shall be filed with the court . . . within three days" after service. R.P.A.P.L. § 735(2). When, as here, petitioner serves by substitute service, the "service shall be complete upon the filing of proof of service." R.P.A.P.L. § 735(2)(b).
A rent demand is not a pleading to be filed with proof of service in a summary proceeding. J.D. Realty Assocs. v. Jorrin, 166 Misc 2d 175, 179 (Civ.Ct. NY Co. 1995), aff'd, 169 Misc 2d 292 (App. Term 1st Dep't 1996); Bonsignore v. De Bove Inc., N.Y.L.J., June 24, 1998, at 26 (Civ.Ct. NY Co.); Romea v. Heiberger Associates, 163 F.3d 111, 117 (2d Cir. 1998). The demand provides a tenant notice of nonpayment of rent to permit the tenant's timely payment and avoid a summary proceeding. J.D. Realty Assocs. v. Jorrin, 166 Misc 2d at 179, aff'd, 169 Misc 2d 292; Kulok v. Riddim Co., 185 Misc 2d 195, 196 (Civ. Ct. NY Co. 2000); Zenila Realty v. Masterandrea, 123 Misc 2d 1, 10 (Civ.Ct. NY Co. 1984); Romea v. Heiberger Associates, 163 F.3d at 117. The summary proceeding then is commenced by the service and filing of a notice of petition and petition. N.Y.C. Civ. Ct. Act (CCA) § 400; R.P.A.P.L. § 731(1); 528 E. 11th St. H.D.F.C. v. Durieaux, 164 Misc 2d 595, 596-97 (Civ.Ct. NY Co. 1995); 215 Bush St. Co. v. Jose, 146 Misc 2d 997, 999 (Civ.Ct. Bronx Co. 1990).
To apply the requirements for filing proof of service to rent demands would completely negate the requirements' effect. Zappone v. Home Ins. Co., 55 NY2d 131, 138 (1982); Statewide Roofing v. Eastern Suffolk Bd. of Coop. Educ. Servs., 173 Misc 2d 514, 518 (Sup.Ct. Suffolk Co. 1997); Matter of Marino S., 181 Misc 2d 264, 275 (Fam.Ct. NY Co. 1999); Matter of Gabriel M., 128 Misc 2d 313, 317 (Fam.Ct. Kings Co. 1985). By definition, the "three days' notice" prohibits a landlord from commencing a nonpayment proceeding and filing its initial pleadings until more than three days after serving the demand. R.P.A.P.L. § 711(2). Thus compliance with R.P.A.P.L. § 711(2) would prohibit compliance with R.P.A.P.L. § 735(2)'s filing requirements if applied to rent demands. The only reasonable interpretation of R.P.A.P.L. §§ 711(2) and 735(2), therefore, is that the requirements for filing an affidavit of service do not apply to rent demands. Ellington Constr. Corp. v. Zoning Bd. of Appeals of Inc. Vil. of New Hempstead, 77 NY2d 114, 124-25 (1990); Zappone v. Home Ins. Co., 55 NY2d at 137; Statewide Roofing v. Eastern Suffolk Bd. of Coop. Educ. Servs., 173 Misc 2d at 518-19; Commissioner of Social Servs. v. Jessie B., 111 Misc 2d 617, 621-22 (Fam.Ct. NY Co. 1981). Only this interpretation gives effect to both statutes.
Even if the filing requirements applied, CCA § 411 permits affidavits of service in summary proceedings to be filed late. Jamal Estates v. Crockwell, 113 Misc 2d 548, 549-50 (App. Term 1st Dep't 1982). See Tasman v. Esposito, N.Y.L.J., Nov. 21, 1990, at 27 (App. Term 2d Dep't); Eiler v. North, 121 Misc 2d 539, 542 (County Ct. Delaware Co. 1983). Given this statutory provision, the failure to file an affidavit of service timely could hardly be a fatal defect. Jamal Estates v. Crockwell, 113 Misc 2d at 550; Tasman v. Esposito, N.Y.L.J., Nov. 21, 1990, at 27. Personal jurisdictional requirements, moreover, are to give notice of adverse charges and action and the opportunity to confront and defend against them. Petitioner satisfies these fundamental elements once it informs respondent of the outstanding rent, the three days for payment, and the alternative consequences. Actual service of this three day notice on respondent, not filing of an affidavit evidencing the service to complete the service requirements, gives the requisite notice for jurisdictional purposes. Fame Equities Mgt. Co. v. Malcolm, N.Y.L.J., Oct. 28, 1996, at 27 (App. Term 1st Dep't); Jamal Estates v. Crockwell, 113 Misc 2d at 550-51; Tasman v. Esposito, N.Y.L.J., Nov. 21, 1990, at 27; Eiler v. North, 121 Misc 2d at 542.
III. APPLICATION OF THE FIVE DAY NOTICE TO CURE TO A NONPAYMENT PROCEEDING
The parties' lease ¶ 17 sets forth what constitutes a default under the lease that will result in its termination if the specified procedure is followed. Subparagraph (c) permits petitioner to consider nonpayment of rent such an event. Metropolitan 919 3rd Ave. v. Clarke's Rest. Corp., 2001 NY Slip Op 50055, 2001 WL 1657200 (App. Term 1st Dep't Dec. 21, 2001); Swingtime, LLP v. White House (NY) Inc., N.Y.L.J., July 31, 2001, at 13 (App. Term 1st Dep't); Grand Liberte Coop. v. Bilhaud, 126 Misc 2d 961, 963 (App. Term 1st Dep't 1984). If petitioner elects this option, petitioner then must serve a notice allowing respondent five days to cure the nonpayment, after which, absent a cure, petitioner may terminate the lease. This standard amendment to leases for commercial premises, prohibited for residential premises, 61 E. 72nd St. Corp. v. Zimberg, 161 AD2d 542 (1st Dep't 1990); Park Summit Realty Corp. v. Frank, 107 Misc 2d 318, 323-24 (App. Term 1st Dep't 1980), aff'd, 84 AD2d 700 (1st Dep't 1981), aff'd, 56 NY2d 1025 (1982); 205 West End Owners Corp. v. Adler, N.Y.L.J., Apr. 2, 1990, at 21 (App. Term 1st Dep't), thus permits nonpayment of rent to be treated as a lease default triggering termination, "a conditional limitation so as to permit recovery of commercial premises in a holdover proceeding." Grand Liberte Coop. v. Bilhaud, 126 Misc 2d at 963. See Ranalli v. Burns, 157 AD2d 936, 937 (3d Dep't 1990); Metropolitan 919 3rd Ave. v. Clarke's Rest. Corp., 2001 WL 1657200; Motor Parkway Realty Corp. v. IPM Products Corp., N.Y.L.J., May 1, 1997, at 37 (App. Term 2d Dep't).
Here, petitioner did not elect this option. Petitioner's choice to pursue a nonpayment proceeding under R.P.A.P.L. § 711(2) is in fact the very antithesis of declaring respondent's default and terminating the lease. Berkeley Associates Co. v. Gersten, N.Y.L.J., May 7, 1987, at 13 (App. Term 1st Dep't); Harris v. Timecraft Indus., 132 Misc 2d 386, 389 (Civ.Ct. NY Co. 1986); Ansonia Assoc. v. Pearlstein, 122 Misc 2d 566, 567 (Civ.Ct. NY Co. 1984); Northeast Bronx Hillside Corp. v. Deas, N.Y.L.J., July 15, 1992, at 24 (Civ.Ct. Bronx Co.). The nonpayment proceeding necessarily is premised on respondent being a tenant that has failed to pay rent under an unexpired rental agreement. Motor Parkway Realty Corp. v. IPM Products Corp., N.Y.L.J., May 1, 1997, at 37; Harris v. Timecraft Indus., 132 Misc 2d at 389; Northeast Bronx Hillside Corp. v. Deas, N.Y.L.J., July 15, 1992, at 24.
The petition in this proceeding recites that respondent is a "tenant . . . under a lease," Petition ¶ 2, and the monthly rent due under the parties' lease. The petition affirmatively admits the parties' landlord-tenant relationship, Ansonia Assoc. v. Pearlstein, 122 Misc 2d at 568, and thus reaffirms the lease and tenancy. Berkeley Associates Co. v. Gersten, N.Y.L.J., May 7, 1987, at 13; Motor Parkway Realty Corp. v. IPM Products Corp., N.Y.L.J., May 1, 1997, at 37; Harris v. Timecraft Indus., 132 Misc 2d at 389; Ansonia Assoc. v. Pearlstein, 122 Misc 2d at 567, 569-70.
Were petitioner declaring a lease default and terminating the rental agreement, petitioner would not allege a lease in effect and would be relegated to a holdover proceeding, where respondent would be holding possession of the previously rented premises over and beyond the lease's expiration, under R.P.A.P.L. § 711(1). Harris v. Timecraft Indus., 132 Misc 2d at 389. The holdover proceeding presupposes a terminated rental agreement, while the nonpayment proceeding presupposes a rental agreement that remains in effect. Motor Parkway Realty Corp. v. IPM Products Corp., N.Y.L.J., May 1, 1997, at 37; Harris v. Timecraft Indus., 132 Misc 2d at 389.
Thus, in this nonpayment proceeding, respondent has the all important right to honor the lease and pay any judgment for rent, to avert a warrant of eviction and keep the rental agreement in effect. Grand Liberte Coop. v. Bilhaud, 126 Misc 2d at 963. Had petitioner commenced a holdover proceeding, the court could not afford respondent any time after the five day notice period to cure the nonpayment of rent, and neither respondent nor the court could reaffirm or revive the terminated lease and tenancy. Id. at 964.
IV. CONCLUSION
In sum, because the petition evinces a nonpayment proceeding, not a holdover premised on an expired rental agreement, the commercial lease's notice to cure requirements do not apply to this proceeding. The rent demand fulfilled the predicate notice requirements. Because R.P.A.P.L. §§ 711(2) and 735(2) would be ineffective if § 735(2)'s filing requirements were applied to rent demands, the requirements for filing an affidavit of service do not apply to rent demands. Therefore the court denies respondent's motion to dismiss this proceeding. The parties shall appear for trial April 28, 2004, at 9:30 a.m., in Part 52. This decision constitutes the court's order.