Opinion
No. LT–006165–12.
2013-03-4
Stanley KLEINFELD, Petitioner(s) v. WOODBURY ROAD CLEANERS, INC. d/b/a Pampers Cleaners, John Park, “John Doe and Jane Doe,” Respondent(s).
Farley & Kessler, P.C., Jericho, Attorneys for Petitioner. Ackerman, Levine, Cullen, Brickman & Limmer, LLP, Great Nec, Attorneys for Respondent.
Farley & Kessler, P.C., Jericho, Attorneys for Petitioner. Ackerman, Levine, Cullen, Brickman & Limmer, LLP, Great Nec, Attorneys for Respondent.
SCOTT FAIRGRIEVE, J.
The respondents, Woodbury Road Cleaners, Inc. and John Park, move for an order pursuant to RPAPL §§ 711, 741 and 735 to dismiss the within Petition and Notice of Petition. The petitioner cross moves for an order pursuant to CPLR 3215, 402, 404 and RPAPL § 743 granting a default judgment against the respondents.
The petitioner commenced this non-payment proceeding in November of 2012, by the filing of the Notice of Petition and Petition. The petitioner seeks a judgment of possession and warrant of eviction for the premises 448 Woodbury Road, Plainview, New York, 11803, a money judgment for rent arrears in the sum of $235,376.00 plus reasonable attorney's fees with interest thereon from November 14, 2012.
Initially, the respondent argues that pursuant to RPAPL § 711(2), the instant proceeding should be dismissed upon the grounds that the rent demand was not served in accordance with RPAPL § 735.
RPAPL § 711(2) states, in pertinent part, as follows:
... A special proceeding may be maintained under this article upon the following grounds:
(2) the tenant has defaulted in the payment of rent, pursuant to the agreement under which the premises are held, and 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 possession of the premises, has been served upon him as prescribed in section 735.
Service of a three day demand for rent is a statutory predicate for the commencement of a summary non-payment proceeding (RPAPL § 711[2]; Schwartz v. Weiss–Newell, 87 Misc.2d 558, 386 N.Y.S.2d 191 [Civ Ct, N.Y. County 1976] ). A statutory rent demand is one of the facts upon which a special proceeding is based (RPAPL § 741[4]; Tolman v. Heading, 11 A.D. 264, 42 N.Y.S. 217 [3d Dept 1896] ). The minimum statutory requirements for a demand for rent required under RPAPL § 711 in order to maintain a summary proceeding, is that the petitioner make a three day personal demand or serve a written demand on the tenant requiring the payment of rent due or possession of the premises ( see 1675 Realty Co. v. Quinones, 152 Misc.2d 393, 576 N.Y.S.2d 995 [Civ Ct, Bronx County 1991] ).
If a written demand is made, the demand must be served pursuant to the provisions of RPAPL § 735 which require the written notice to be personally delivered to a tenant, unless otherwise agreed in the lease. If after reasonable application personal delivery of the demand cannot be effectuated, then the demand must be served by substituted service on a person of suitable age and discretion or by conspicuous placement on the entrance door of the premises and in addition within one day by mailing to respondents both by registered or certified mail and by regular first class mail (RPAPL § 735 [1] ).
Absent proof of a personal demand or a proper three day written notice, a nonpayment proceeding is jurisdictionally defective and must be dismissed (Pepe v. Miller & Miller Consulting Actuaries, 221 A.D.2d 545, 634 N.Y.S.2d 490 [2d Dept 1995]; Solack Estates, Inc. v. Goodman, 102 Misc.2d 504, 425 N.Y.S.2d 906 [App Term, 1st Dept 1979], affd78 A.D.2d 512, 432 N.Y.S.2d 3 [1st Dept 1980]; Martine Associates LLC v. Minck, 5 Misc.3d 61, 785 N.Y.S.2d 648 [App Term, 2d Dept 2004] ).
A landlord must in the first instance both allege and prove that he has complied with the statutory condition precedent in order to become entitled to possession ( see Solack Estates, Inc. v. Goodman, 102 Misc.2d 504, 425 N.Y.S.2d 906). The demand requirement ensures that a tenant receive sufficient notice of the nature of the alleged default in order to timely cure and avoid unnecessary litigation ( see L. D. Realty Assoc. v. Jorrin, 166 Misc.2d 175, 632 N.Y.S.2d 441 [Civ Ct, N.Y. County 1995], affd169 Misc.2d 292, 650 N.Y.S.2d 67 [App Term 1st Dept 1996] ).
The respondent contends that the three (3) day notice is defective because the service requirements of RPAPL § 735 were not followed. Specifically, the respondent contends that the petitioner served the demand pursuant to CPLR 2103 rather than RPAPL § 735. In opposition, the petitioner argues that in addition to its written demand, it also made an oral demand for rent. However, the petitioner did not plead such oral demand in its petition. Thus, the Court shall solely consider the sufficiency of the written demand for rent.
It is uncontroverted that the petitioner's written demand for rent was sent via mail. A review of the affidavit of service demonstrates that the three (3) day rent demand was mailed on November 14, 2012 via overnight delivery pursuant to CPLR 2103(c) and via first class mail. There is no indication that the rent demand was given to either a person of suitable age and discretion or affixed to the door as required by RPAPL § 735. Moreover, there is no allegation of in-hand personal delivery. In addition, there are no allegations by the parties that the assignment and/or lease, provided for an alternative method of service of the predicate notice.
Since a summary proceeding to remove a tenant is a special proceeding governed entirely by statute, the statutory requirements must be strictly complied with in order to give the Court jurisdiction ( see Hanover Estates v. Finkelstein, 194 Misc. 775 [1949]; Genesee Gateway Houses Inc. v. Khalid, 2003 WL 21014857 [NY City Ct 2003] ).
As the demand for rent, was not served in accordance with RPAPL § 735, the predicate notice given to the respondent is insufficient and divests this Court of jurisdiction to proceed ( see Henry and Baltic Associates v. K & Q Food Corp., 7 Misc.3d 83, 796 N.Y.S.2d 837 [App Term 2nd and 11th Jud Dists 2005]. Inasmuch as a valid predicate notice is a condition precedent to a summary proceeding ( see Chinatown Apts. v. Chu Cho Lam, 51 N.Y.2d 786 [1980] ) and predicate notices are not amendable ( see City of Buffalo Urban Renewal Agency v. Lane Bryant Queens, 90 A.D.2d 976, 456 N.Y.S.2d 568 [4th Dept 1982], affd59 N.Y.2d 825 [1983] ), the petition must be dismissed.
Accordingly, the respondent's motion for an order dismissing this summary proceeding is hereby granted.
Moreover, the Court finds that the petitioner failed to comply with RPAPL § 733. RPAPL § 733 provides that the notice of petition and petition shall be served at least five and not more than twelve days before the time at which the petition is noticed to be heard. In addition, RPAPL § 735 labeled “Manner of service; filing; when service complete” provides that when service is made by substituted service “nail and mail” and/or “conspicuous place service” such service shall be complete upon filing of proof of service. If service is made by in hand personal delivery, service is complete immediately upon such personal delivery.
In the instant case, the affidavit of service indicates that on December 4, 2012, service was made upon the respondents by in hand personal delivery to John Park. Thus, service was complete on that date. The petition was noticed to be heard on December 24, 2012 (20 days later). As such, the respondent failed to comply with RPAPL § 733 ( see generally Frank v. Ange, 82 Misc.2d 465, 370 N.Y.S.2d 365 [Rochester City Ct 1975] ).
In view of the dismissal on the aforementioned grounds, the Court need not address the remainder of the arguments raised by respondents in their motion. Moreover, the petitioner's cross motion for, inter alia, a default judgment against the respondents is denied as moot, as a default judgment may not be granted on facially insufficient papers (Martine Assocs. LLC v. Minck, 5 Misc.3d 61, 785 N.Y.S.2d 648 [App Term, 2d Dept 2004] ).
The foregoing constitutes the decision and order of the Court.
So Ordered.