LANDLORD/TENANT UPDATE

Remember...Alternative Theories Are Not Permitted.

In Thelen v. Torres¹, a nuisance summary proceeding, the court addressed the sufficiency of a notice to cure. The ten-day notice to cure read as follows:

PLEASE TAKE NOTICE, that the grounds upon which this cure notice rests are that you have caused, allowed and permitted nuisance conditions, at or near the premises which interfere with the quiet enjoyment of other tenants, the landlord, and the subject premises.

Specifically: It has been discovered by the landlord within the last two weeks that you are harboring 4 dogs in your apartment (a mother and puppies). This represents a violation of your lease. They must be removed immediately.

The respondent’s counsel claimed that since the basis for the summary proceeding was nuisance, it was incumbent upon the petitioner to give a description of any incidents of nuisance including date, times, locations or the nature of any alleged incidents. Barring that description, the respondent claimed, the notice to cure was ineffective to grant the court the appropriate jurisdiction.

The petitioner’s counsel argued that, at the least, the notice was sufficient to proceed on the grounds that the respondent had violated a substantial obligation of her lease notwithstanding the denomination of the proceeding as a “nuisance” holdover.

The court held that an effective termination notice in a nuisance action must specify dates, times, locations and the nature of the alleged incidents of nuisance. Having failed to do so, the petitioner’s notice was jurisdictionally defective. In the alternative, even if the termination notice were considered on the grounds of breach of a substantial violation of the lease, the notice failed to state specifically what provision of the lease was violated.

Notwithstanding, the court held, having elected his remedy by commencing a nuisance holdover proceeding, the petitioner was obligated to serve the correct and effective predicate notice. Having failed to serve an effective predicate notice for the nuisance proceeding, the petitioner was not permitted to proceed on an alternate theory and the case was dismissed.

WHERE DO YOU SERVE A TENANT?

Section 735 of the Real Property Actions and Proceedings Law clearly states that the tenant must be served at the premises sought to be recovered. But what happens if you know that the tenant is no longer there AND you know where the tenant is now located? The court in Dexter 345, Inc.

v. Labosky² definitively answered that question.

In Labosky, the process server attempted to serve the tenant personally at the premises sought to be recovered with a rent demand and when that failed, resorted to conspicuous place service. The tenant never got the rent demand. The landlord, however, had written knowledge of the tenant’s residence address. The court held that the statute clearly requires a mailing of the service papers to the tenant’s known address if the landlord has written knowledge of that address.

The tenant’s motion to dismiss was granted.

NOTICES OF TERMINATION AND THE GENERAL BUSINESS LAW?

In Guccione v. Guccione³, the petitioner commenced a holdover proceeding by the service of a thirty-day notice. The respondent moved to dismiss claiming that the termination notice was defective because the petitioner had failed to state (i) the statutory authority for the issuance of the notice; and, (ii) relying on General Business Law §89-b, that the process server had failed to state whether he was a licensed process server or, if not, that he had not effected service of process in more than five actions within the preceding twelve months.

In the first instance, the court held that a notice of termination need not recite the statutory authority pursuant to which it is being issued.

In the second instance, the court held that nothing in the General Business Law requires that the process server disclose whether he is licensed but merely recites the definition of a process server. The respondent’s motion was denied.

REALLY, WHO IS A NECESSARY DEFENDANT?

When drafting a notice of petition and petition, the rule is that you must name each and every person who might have a possessory interest in the premises sought to be recovered. These persons are considered necessary parties. There are cases which hold that both a husband and wife must be named because each has an independent possessory interest in the premises,⁴ and then there are cases like Mimikopoulos v. Nickalas⁵, which said something different.

In Nickalas, the tenant had an oral understanding pursuant to which he rented the premises on a month-to-month basis. The tenant defaulted in the payment of rent and the landlord proceeded with a non-payment proceeding. The tenant moved to dismiss claiming that his wife was a necessary party to the proceeding and, having failed to name and serve her, the proceeding should be dismissed.

Citing City of NY v. Boykin⁶, the court held that the rights of a person whose claim to possession is through the lessee are subordinate and are extinguished by a judgment of possession in favor of the landlord. The court specifically distinguished those cases which hold that a spouse must be named as a necessary party because in those cases, the spouse was able to show that they had an independent possessory interest to the property.

AUTHORIZATION REQUIRED POST FORECLOSURE?

In Fannie Mae v. Lindo⁷, a holdover summary proceeding, the attorneys for Fannie Mae signed and served a ten-day notice pursuant to Real Property Actions and Proceedings Law (“RPAPL”) §713 (no landlord/tenant relationship exists) after the completion of a foreclosure proceeding.

The respondent moved to dismiss claiming that the notice was defective because the law firm which signed the ten-day notice was not known to her since they were not the same law firm that had prosecuted the foreclosure action.

The court drew an analogy to cases which dealt with three-day notices served pursuant to RPAPL §711, where there is a landlord-tenant relationship, and held that since those cases held a notice issued by counsel for the owner/landlord defective because it “...failed to provide the respondent with a reasonable, unambiguous and clear and certain notice regarding who was making the demand for rent...” (Anastasia Realty Co. v. Helen Lai, et al., 173 Misc.2d 1012, 662 NYS2d 714), so too was a ten-day notice served by counsel subsequent to a foreclosure proceeding defective.

Specifically, the court held that “[e]ven if one assumes that the current occupant of the premises was a party to the foreclosure proceedings in Supreme Court, in that matter the foreclosing mortgagee was represented by a different firm of attorneys, and a new firm is now handling this District Court [summary] proceeding.” Consequently, the court held that the ten-day notice served by counsel was jurisdictionally defective and dismissed the proceeding.