Chinatown Apartments, Inc. v. Chu Cho Lam
| Citation | 412 N.E.2d 1312,433 N.Y.S.2d 86,51 N.Y.2d 786 |
| Parties | , 412 N.E.2d 1312 CHINATOWN APARTMENTS, INC., Appellant, v. CHU CHO LAM, Respondent. |
| Decision Date | 07 October 1980 |
| Court | New York Court of Appeals |
The order of the Appellate Division should be affirmed, 72 A.D.2d 532, 421 N.Y.S.2d 76, with costs.
Upon a breach by the tenant of one of the lease provisions, petitioner landlord was entitled to serve the tenant with a "Notice of Intention to Terminate Occupancy"; and, under the terms of the lease, the tenancy would terminate automatically after service of such notice unless the tenant acted within 10 days to cure the alleged breach. Here, so far as is material to the issue in this appeal, the notice served upon respondent tenant alleged only that a "partition" had been erected on the premises in violation of certain specific clauses in the lease. However, respondent had not in fact erected a "partition", but rather had constructed a freestanding, cube-like structure which stood in the center of one of his rooms.
Petitioner contends that respondent should have removed his "cube" when he was served with a notice complaining of the unauthorized erection of a "partition". It has also been suggested that any confusion regarding the nature of the offending condition within the apartment should have been dispelled when the court made an on-site inspection of the premises and permitted petitioner to amend its dispossess petition to account for the presence of "a cube-shaped wooden and plasterboard structure". Of course, since the right to terminate the tenancy pursuant to the terms of the lease was dependent upon service of an adequate notice, the subsequent amendment of the petition, which could not operate retroactively to cure a defect in the notice, did not enhance petitioner's right to relief. * Similarly the trial court's observation that the "cube" constituted a violation of certain city health and safety ordinances is of no analytic consequence, since the only substantial issue before this court is the sufficiency of petitioner's notice.
With respect to this issue, even if we were to agree with petitioner, as some of the members of the court would, that the allegation in the notice concerning the presence of a "partition" was sufficient to apprise respondent of the condition which petitioner wished to have cured, we would...
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