326-330 E. ST. v. Sofizade

Decision Date04 April 2002
Citation191 Misc.2d 329,741 N.Y.S.2d 380
Parties326-330 EAST 35TH STREET ASSOC., Appellant,<BR>v.<BR>GARY SOFIZADE, Respondent, et al., Respondents.
CourtNew York Supreme Court

Lapidus & Smith, LLP, New York City (Wayne R. Smith and William J. Ferrall of counsel), for appellant.

John D. Gorman, New York City, for Gary Sofizade, respondent.

McCOOE, J.P., GANGEL-JACOB and SUAREZ, JJ., concur.

OPINION OF THE COURT

Per Curiam.

Order entered June 29, 2001 reversed, with $10 costs, tenant's motion denied, holdover petition reinstated, landlord's cross motion for summary judgment on the petition is granted, and the matter remanded to Civil Court for further proceedings consistent with this decision.

The holdover summary proceeding stems from allegations that the stabilized tenant breached a substantial leasehold obligation by "consistently, chronically, and unjustifiably" failing to tender the preferential rent agreed upon by the parties when due, requiring the landlord to commence 12 nonpayment proceedings during the period between December 1997 and September 2000. We reject tenant's assertion, advanced as the sole basis for his motion for summary judgment dismissing the petition, that the landlord's election to forego serving a prepetition notice to cure is fatal to its possessory claim.

As this court recently stated in analogous circumstances, a landlord need not serve a notice to cure as a predicate to commencement of a holdover proceeding based upon chronic nonpayment of rent, because "the cumulative pattern of tenant['s] course of conduct" is incapable of any meaningful cure (Adam's Tower Ltd. Partnership v Richter, 186 Misc 2d 620, 622; see also, 3363 Sedgwick v Medina, 187 Misc 2d 421 [App Term, 1st Dept]). Our decision in Adam's Tower to dispense with the empty formalism of a cure notice in this type of eviction proceeding is, as tenant now acknowledges in his appellate brief, consistent with a "long line of cases" reaching the same result (see, e.g., 974 Realty Corp. v Ledford, 9 Misc 2d 240; Ocean Farragut Assoc. v Sawyer, 119 Misc 2d 712; see also, National Shoes v Annex Camera & Elecs., 114 Misc 2d 751 [Saxe, J.]).

Tenant has offered no sound basis for us to depart from our recent four-square holding in Adam's Tower. Granted, a holdover proceeding based upon an alleged substantial lease violation generally will lie only after the tenant has failed to comply with a 10-day notice to cure (see, Rent Stabilization Code [9 NYCRR] § 2524.3 [a] [Code]). Strict adherence to the literal terms of the Code notice requirement is unwarranted in a chronic late payment holdover proceeding, however, since the past, persistent rent defaults which form the basis of the landlord's claim cannot be remedied by a tenant's "furnishing of assurances of future performance" (National Shoes v Annex Camera & Elecs., supra, 114 Misc 2d at 752) or, for that matter, by a tenant's actual tender of any rent payment that may accrue during the 10-day, prepetition cure period specified by the Code.[*] To insist upon the service of a formal notice to cure in such circumstances is to compel the performance of a useless and futile act.

Nor do the notice provisions of paragraph 17 of the parties' lease agreement require the dismissal of the within holdover petition. That section states, insofar as relevant, that in the event of a lease default by tenant "other than a default in the agreement to pay rent, Owner may serve [Tenant] with a written notice to stop or correct the specified default within 10 days. [Tenant] must then either stop or correct the default within 10 days, or, if [Tenant] need[s] more than 10 days, [Tenant] must begin to correct the default within 10 days and continue to do all that is necessary to correct the default as soon as possible." Even assuming, in tenant's favor, that paragraph 17, which by terms covers lease defaults other than those involving "the agreement to pay rent" was triggered by the recurring rent defaults that occurred here, the fact that the lease provides time for a cure "does not necessarily imply that a means or method to cure must exist in every case." (Adam's Tower Ltd. Partnership v Richter, supra at 622 [internal quotation marks omitted], quoting National Shoes v Annex Camera & Elecs., supra at 752.) The due diligence provisions of paragraph 17, permitting the tenant to "begin to correct" a lease violation within 10 days and to "continue to do all that is necessary to correct the default as soon as possible," clearly were intended to cover the not uncommon situation in which a full cure of a correctable lease default is not feasible within 10 days—the removal of extensive alterations or a recalcitrant subtenant are two...

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30 cases
  • Goldstein v. Lipetz
    • United States
    • New York Supreme Court — Appellate Division
    • May 23, 2017
    ...prior to the default complained of, and the circumstances and severity of the default (see 326–330 E. 35th Street Assoc. v. Sofizade, 191 Misc.2d 329, 741 N.Y.S.2d 380 [App.Term. 1st Dept.2002] ). These cases create a test which, applied to this case, I would find precludes the grant of sum......
  • 1605 Realty Corp. v. Cataquet
    • United States
    • New York Civil Court
    • March 8, 2017
    ...notice is not required if the factual basis for the proceeding is chronic rent delinquency. 326–330 E 35th St Assoc v. Sofizade (191 Misc.2d 329, 741 N.Y.S.2d 380 [App Term 1st Dep't 2002] ); Adam's Tower Ltd Partnership v. Richter, supra.Subsection (b) applies where the claim is that the t......
  • Brookford, LLC v. Penraat
    • United States
    • New York Supreme Court
    • December 19, 2014
    ...Misc.3d 1144(A), 859 N.Y.S.2d 896, 2008 WL 623036 (Table)[N.Y. City Civ.Ct.2008] citing 326–330 East 35th St. Assoc. v. Sofizade, 191 Misc.2d 329, 330, 741 N.Y.S.2d 380 [App.Term, 1st Dept.2002] and RSC § 2524.3[a] ). However, there “are only two possible exceptions to the Notice to Cure re......
  • 1521 Sheridan LLC v. Vasquez
    • United States
    • New York Civil Court
    • June 22, 2017
    ...the court exercises its discretion to stay execution of the possessory judgment under CPLR § 2201, 326–330 E 35th St Assoc v. Sofizade, 191 Misc.2d 329, 332, 741 N.Y.S.2d 380, 382 (App.Term 1st Dep't 2002), as well as to permanently vacate the warrant of eviction. Brusco v. Braun, 84 N.Y.2d......
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