Opinion
LT-003251-10.
Decided January 20, 2011.
Rosenberg Calica Birney LLP, Attorneys for Petitioner, Garden City, New York.
Jaffe, Ross Light, LLP, Attorneys for Respondent, New York, New York.
This holdover proceeding arises from a commercial lease signed by the parties on or about May 29, 1997, as thereafter amended between the respondent and the landlord's predecessor in interest. Said lease was for an initial term of 124 months and thereafter, extended to expire on December 31, 2012. The petition seeks to recover possession of the premises described as: all rooms located in suites 110 and 120 on the first floor and suites 519 and 520 on the fifth floor of the premises known as 200 Garden City Plaza, New York, 11530, County of Nassau, as well as rent and related costs in the amount of $5,000.00, with interest.
Respondent, Computer Career Center, Inc (hereinafter referred to as CCC), now moves for an order granting it summary judgment dismissing the petition pursuant to CPLR § 3212, based upon alleged defaults in the lease between the parties: namely, that the letter dated January 29, 2010, purporting to be a lease notice and the letter dated March 31, 2010, purporting to be a lease termination notice, were not properly sent and /or given to all of the notice parties mandated by section 1.1 (e) and 27.12 of the lease, to wit: to Stephen Garber as an additional mailing address, nor were they addressed to or given to the respondent at Suite 100 as required by the lease. It is noted that in the attorney reply affirmation footnote No. 1, CCC withdrew its argument concerning Suite 100 from which it vacated in November 2006; pursuant to CPLR §§ 3212 and 3211(a)(4), on the grounds that there are prior actions between the parties pending in the Supreme Court of Nassau County; pursuant to CPLR §§ 3212 and 3211(a)(7) dismissing items (v) and (vi) of the January 29, 2010 letter on the grounds that they can not support the termination of a tenancy because (a) the defaults claimed in those items are vague and ambiguous; (b) these items in Defendant's omnibus motion are determined as follows: not specify either a clause of the lease that has been violated, or an applicable statute, rule or other legal requirement; and/or (c) these items do not identify specific facts giving raise to an alleged default sufficient to give the respondent adequate notice of an alleged claim of a default of the lease; and pursuant to CPLR § 3212 dismissing items (1) and (2) of the letter of January 29th on the grounds that the respondent gave the petitioner the keys and access to the premises, item (iv) of the January 29th letter on the grounds that the respondent has tendered sums owed for security guards as required by the lease, item (vii) of the January 29th letter on the grounds that the reps is using the premises as authorized by the petitioner and consistent with the petitioner's renovations and item (viii) of the January 29th letter on the grounds that the lease requires the petitioner to secure all permits. The petitioner opposes the motion and the respondent has filed a reply.
By notice dated January 29, 2010, the petitioner/landlord, Treeline 100-400 GCP LLC (hereinafter referred to as Treeline), gave the respondent/ tenant a written notice that it was allegedly in default of its obligations under the lease and gave the respondent at least thirty [30] days written notice to cure. It is alleged that the tenant failed to timely cure said defaults. Said notice was personally delivered to George Heidelberger, a manager of CCC, at 200 Garden City Plaza, Suite 519. A written notice of termination of tenancy, dated March 31, 2010, was served upon the respondent. Said notice was served by hand by personally delivering and leaving the same with Monifa Skelton, a manager of CCC, at 200 Garden City Plaza, Suite 519. Pursuant to this notice, the term for which the premises was rented expired on May 31, 2010. The petitioner alleges that the respondent continued in possession without the permission of the landlord after the expiration of said term.
On June 1, 2010 the notice of petition and petition were served upon the respondent by hand delivery upon Monifa Skelton, a manager of CCC, at 200 Garden City Plaza, Suite 519, at approximately 3:22 PM. According to the affidavit of service, at approximately 5:02PM, a copy of the notice of petition and petition was served upon Maritsa Ulysse, a receptionist for CCC. Two [2] copies of the notice of petition and petition were mailed on June 1, 2010 to the respondent at 200 Garden City Plaza, Suite 519, one [1] by certified mail, return receipt requested and the other by first class mail.
To terminate a tenancy at a time other than at the end of a definite term, a landlord must properly serve all the required predicate notices, including any notices to cure and notices to termination. Pursuant to the lease, a notice of termination was required. Therefore, service of the notice is a jurisdictional prerequisite to a summary proceeding; if the tenancy has not been properly terminated, the Court has no jurisdiction to proceed and the petition should be dismissed ( Chinatown Apartments, Inc v. Chu Cho Lam, 51 NY2d 786; Service Station Realty Corporation v. RMAK Corporation, 28 Misc 3d 1235A [Nassau Dist Ct 2010]).
Section 27.12 of the Lease states:
27.12 Notices. Any notice, request, demand, consent, approval, or other communication required or permitted under this Lease must be in writing and will be deemed to have been given when personally delivered, sent by facsimile with delivery acknowledged by the sending machine, deposited with any nationally recognized overnight carrier that routinely issues receipts, or deposited in any depository regularly maintained by the United States Postal Service, postage prepaid, certified mail, return receipt requested, addressed to the party for whom it is intended at its address(es) set forth in Section 1.1. Either Landlord or Tenant may add additional addresses or change its address for purposes of receipt of any such communication by giving ten (10) days' prior written notice of such change to the other party in the manner prescribed in this Section 27.12.
Section 1.1 of the Lease specifies that parties to whom the notices are to be given. As it relates to the Tenant, Section 1.1 (d) and (e) state:
(d) TENANT:
Computer Career Center, Inc.
200 Garden City Plaza, Suite 100
Garden City, NY 11530
(e) TENANT'S ADDRESS: The Premises as defined in this Lease with a copy at the same time to:
Mr. Stephan Garber
Attorney at Law
600 Old Country Rd.
Garden City, NY 11530
The respondent maintains that the petitioner alleges that the notice to cure and the termination notice were not properly sent and/or given in the manner required by sections 1.1(e) and 27.12 of the parties May 27, 1997 lease. As reflected in the affidavits of service, the petitioner failed to send a copy of the January 29, 2010 letter to Stephen Garber, nor was Mr. Garber served with a copy of the notice of termination. Instead, the notices were delivered to employees of CCC at Suite 519 and a copy mailed to Suite 519.
In opposition to this motion the respondent's motion, Treeline, maintains that CCC received the notices and that their Yellowstone injunction action was litigated on the merits without CCC ever challenging the service of the notices. The petitioner's executive vice president, Michael Schor, asserts in his affidavit in opposition that the notices were properly served pursuant to the lease provisions and that CCC waived any objection to the manner of service of the notices by its actions. Therefore, he posits the respondent can not allege a defect to delay the trial of this action.
In its memorandum, petitioner's counsel avers that the language in lease provision section 27.12, regarding the manner and place of delivery, is neither mandatory nor exclusive. Nowhere, counsel asserts, does the lease say that notices must only be given in that manner and to the stated addresses, only that it will be deemed given if sent in the manner to those addresses. The language chosen speaks only of when a notice will be deemed to have been given. Furthermore, counsel asserts that even assuming, for the purposes of argument, that the notices were not properly served upon the respondent, CCC never objected thereto while appearing and litigating the merits of the notice of default and addressing the contents of the notice.
Upon a review of the papers before it, the Court finds that the petition must be dismissed as jurisdictionally defective.
Although the petitioner maintains that the notices were hand delivered and should be deemed to have been given when personally delivered, it is uncontroverted that the notices to cure and terminate were not served upon Stephan Garber, as per section 1.1 of the lease. The lease provides for a manner of service of written notices and designates that address at which such notices were to be sent. Even if this Court were to find that section 27.12 was ambiguous, the ambiguity must be determined to be in favor of the tenant and against the landlord, so as not to allow for abrupt of valuable commercial leases ( Midco Nowash LLC v. #1 Travel, Inc. , 29 Misc 3d 254 [Nassau Dist Court 2010]). Further, the Court finds no merit in the petitioner's contention that the respondent has waived its right to raise improper service of the notices in this summary proceeding by having moved for a Yellowstone injunction before the notice of termination was given.
The petitioner has failed to establish that it properly served all the required predicate notices. Accordingly, the respondent's motion is granted and the petition is dismissed. In light of the dismissal, the Court need not reach the merits of the respondent's other contentions.
So Ordered: