Opinion
No. LT–003973–10.
2010-09-14
SERVICE STATION REALTY CORP., Petitioner(s) v. RMAK CORP., Respondent(s).
Darrell J. Conway, P.C., Babylon, Attorneys for Petitioner. Ezratty, Ezratty & Levine, Mineola, Attorney for Respondents.
Darrell J. Conway, P.C., Babylon, Attorneys for Petitioner. Ezratty, Ezratty & Levine, Mineola, Attorney for Respondents.
SCOTT FAIRGRIEVE, J.
In this non-payment proceeding, arising from a commercial lease signed by the parties on or about February 9, 2009, the petitioner, Service Station Realty Corp., seeks to recover possession of the property located at 3880 Long Beach Road, Island Park, New York, as well as rent and related costs in the amount of $19,449.00 from the respondent, RMAK Corp.
Respondent now moves for an order pursuant to CPLR 3211 dismissing the petition based upon a jurisdictional defect, or, in the alternative, for leave to serve and file an answer to the petition. Petitioner opposes this motion and the respondent has filed a reply.
The respondent maintains that the rent demand served upon it was defective and therefore the proceeding must be dismissed. The purported demand was, as counsel asserts, in the form of a letter from the petitioner's former attorney; did not state whether it was a three-day notice, a five-day notice, or something else; did not state that the rent must be paid by a certain date or within five days from the date of receipt; states that the respondent failed to pay certain charges, though an obligation for payment of said charges is not found in the lease and late fees of $300.00, though the actual amount of late fees per month and the time period to which this charge applies is not specified in the letter; and the letter is signed by Paul S. Sibener, the petitioner's then attorney. Further, counsel notes, the letter states that if the money is not paid, the petitioner will commence legal action to collect the money, but does not mention reclaiming possession of the premises, as demanded in the petition.
In opposition, petitioner's new counsel posits that this motion is merely an attempt to delay the ultimate recovery. Counsel argues that the rent demand clearly recites the monthly rent due and that the tenant should not be permitted to use a technical defense to relieve it of its contractual obligations to pay monthly rent.
Pursuant to RPAPL 711(2), a special proceeding may be maintained under this article upon the following grounds:
The tenant has defaulted in the payment of rent, pursuant to the agreement under which the premises are held, and a demand of 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.
The purpose of the demand is to give the tenant an opportunity to cure the alleged default by making a payment as well as to advise the tenant of the risk of forfeiture and eviction if the default is not cured. It is well settled that proof of a proper demand for rent is a jurisdictional requisite to maintain a summary proceeding and failing to comply calls for dismissal of the action (St. James Court LLC v. Booker, 176 Misc.2d 693 [Civ Ct, Kings County, 1998] ).
The Court agrees with the respondent's contention that the rent demand dated June 21, 2010 is defective in several respects. Petitioner did not comply with the form and content of a proper rent demand. The demand letter does not tell the respondent that in order to avoid further litigation the monies must be paid within five days, nor does the letter inform the respondent that a summary proceeding will be commenced to reclaim possession of the premises. In addition, an attorney may not sign a rent demand on behalf of his client without prior disclosure of the authority to do so.
In the case at bar, section (20)(a) of the lease agreement states:
LANDLORD may give TENANT fifteen (15) days notice of intention to terminate this lease, except for rent, in any of the following circumstances:
5. If TENANT shall be in default in the payment of any basic rent or additional rent and such default is not cured within five (5) business days after mailing of written notice thereof by LANDLORD.
In Rasch's Landlord & Tenant including Summary Proceedings, Hon. Robert F. Dolan, states in Section 23:48 entitled “Who May Give Notice of Termination” the following concerning the duty of the Landlord to give proper notice:
A notice of termination must be signed or similarly authenticated by, or at least purport to emanate from, the party who has undertaken in the lease to give the notice. Accordingly, it is well settled that where a lease provides for notice to be given by the landlord, a notice of termination signed by an agent, or by an attorney, who is not named in the lease, and which notice is not accompanied by proof of authority of the agent or the attorney to bind the landlord in giving the notice, may be disregarded by the tenant. Such a notice is insufficient. A tenant is entitled to a notice which will protect him in the event he acts thereon.
There is no duty whatsoever on a tenant upon receiving a notice of termination to inquire as to the authority of the one giving the notice. By his agreement he is entitled to be apprised in a certain way of the termination of his rights as well as of his liabilities. What he thinks or suspects when he gets a notice is immaterial. He may suspect it comes from the right party. He may guess it does not. But there is no reason why he should be put in this position at his peril. “The tenant is to act upon the notice,” said the Court of Appeals, “at the time it is given; hence, it ought to be such a one as he can act upon with safety.”
Since the written lease contemplates notice being given by the landlord and no mention is made that the landlord's attorney possesses the authority to serve, the rent demand signed by the petitioner's former attorney Paul S. Sibener is void.
In light of the above the respondent's motion to dismiss is granted and this proceeding is dismissed without prejudice.
So Ordered: