152 W. Realty, LLC v. N & G Luggages, Inc., 2007 NY Slip Op 50789(U) (N.Y. Civ. Ct. 4/17/2007)
| Decision Date | 17 April 2007 |
| Docket Number | L & T 059788/07. |
| Citation | 2007 NY Slip Op 50789 |
| Parties | 152 W. REALTY, LLC, Plaintiff, v. N & G LUGGAGES, INC. and JUANA MONEGRO, Respondent, BEST LUGGAGE STORE INC., and NICOLAS PAREDES, Respondent-Undertenant. |
| Court | New York Civil Court |
Pollack & Sharan, LLP., for the petitioner, Adam Paul Pollack, Esq., Of counsel.
Marc Aronson, Esq., for the respondent.
Petitioner brings this commercial holdover summary proceeding to regain possession of premises located at 152 West 14th Street, as well as to collect $111,128.51 representing rental arrears for use and occupancy from the respondents. This matter was tried by the court on April 2, 2007. At the trial petitioner presented the testimony of Mr. Paul Steinberg, an employee of S.W. Management, petitioner's managing agent. Respondent did not testify.
Mr. Steinberg stated that he is an employee of S.W. Management and in charge of the accounts receivable for Respondent's account. Petitioner and Respondent entered into a lease for the premises located at 152 West 14th Street on May 9, 1995. The lease began on June 1st. 1995 and ended on May 31st. 2005 [See Petitioner's No.3 in evidence, lease]. Following the termination of the lease S.W. Management sent respondent a Month to Month letter dated June 1, 2005. The letter indicated respondent was now a month to month tenant at a monthly rent of $13,000.00 per month [see Petitioner's 4 in evidence].By letter dated July 19, 2005 petitioner informed respondent that beginning September 1st. 2005 its new rent shall be $14,100.00 per month. This letter also requested that respondent contact the sender in the event it was interested in entering into a lease agreement. [see petitioner's 5 in evidence]. Both letters were in S. W. Management Letterhead and signed by Paul Steinberg. Petitioner also submitted a copy of the deed to the premises, certified on April 2nd. 2007 [ Petitioner's 1 in evidence], a copy of the rent history printed from S. W. Management's computer system showing a balance due and owing as of April 1, 2007 of $111,128.51[Petitioner's 3 in evidence], and the Notice of Termination [ Petitioner's 6 in evidence]. On re-direct petitioner introduced without objection a multiple dwelling registration [see petitioner's # 7 MDR] and then petitioner rested.
Respondent did not present any witnesses. On closing respondent moved to dismiss the proceeding on the following grounds:
1— the predicate notice is defective under Siegel v. Kentucky Fried Chicken because the person that signed it is not the agent or attorney, the name of the signer is not printed, the signature is illegible and there is no certificate of authority annexed to the predicate notice authorizing the signer to act on behalf of the landlord.
2— the predicate notice was only served on the tenant; However, the notice of petition and petition was served on and names four respondents, therefore the proceeding should be dismissed as to the other parties.
3— the 30 day notice was served while there was another proceeding still pending between the parties under index No. 99814/06.
4— the petition should be dismissed as The petition in this proceeding states the following: " the building in which the premises are located is not a multiple dwelling; the premises are located in a building which is otherwise a multiple dwelling and the premises were leased and are used for commercial purposes." This is conflicting information and a jurisdictional defect.
"As a general rule, the notice of termination must be signed by the landlord or if the landlord's agent or attorney is named in the lease, the landlord's agent or attorney. [Linroc Enterprises, Inc. V. 1359 Broadway Associates, 186 AD2d 95, 588 NYS2d 34 (1st. Dept. 1992); Siegel v. Kentucky Fried Chicken, 108 AD2d 218, 488 NYS2d 744 (2nd. Dept. 1985), Affd. 67 NY2d 792, 492 NE2d 390, 501 NYS2d 317(1986)]. If the Landlord's agent or attorney is not named in the lease and the notices of termination is signed by the agent or attorney, proof of agency must be affixed to the notice ( Siegel v. Kentucky Fried Chicken, Supra; Whitefriars East Co. V. Labyrinth Data Processing Enterprises Ltd., 132 Misc 2d 668, 504 NYS2d 1010[ NY City Civ. Ct. 1986]). However, if the tenant had previous dealings with the agent or attorney and therefore knows that he has been granted authority by the landlord, a notice to terminate signed by that agent or attorney can be valid even without proof of the relationship to the landlord ( Tom's Triangle Inc. V. First Quality Leasing of America Inc., 4/3/2002 N.Y.L.J. 21, Col. 2[Dist Ct. Nassau Co.). Furthermore, the termination notice is valid if it is signed by the registered managing agent, even if proof of agency is not affixed to the notice( Pamela Equities Corp v. Fattore, 4/20/89 N.Y.L.J. 23, Col. 2 [App. Term 1st. Dept.]; Melohn v. Guy, 3/21/889 N.Y.L.J. 21, Col.2 [App. Term 1st. Dept.]).
In this case the termination notice was signed by an agent with whom respondent had previous dealings, when the month to month tenancies had been extended by letters dated June 1st. And July 19th, 2005, and knew that the agent had been granted authority by the landlord. Finally the termination notice was served pursuant to RPL §232-a.
The lessor must obtain a judgment of possession against the lessee and may not proceed directly against the undertenant, whether a licensee, subtenant or occupant . Due process requires only that, for the warrant to be effective against a subtenant, licensee or occupant he be made a party to the proceeding, either by naming him in and serving him with the petition and notice of petition or by joining him as a party during the pendency of the proceeding (170 West 85th Street Tenant's Association v. Cruz, 173 AD2d 338, 569 NYS2d 705[App. Div. 1st. Dept. 1991]).
There was no need to serve the predicate...
To continue reading
Request your trial