Cool Fashion of N.Y. Inc. v. New Fashion 6th Ave. Corp.
| Decision Date | 15 December 2016 |
| Citation | 55 Misc.3d 271,42 N.Y.S.3d 781 |
| Parties | COOL FASHION OF N.Y. INC., Petitioner–Landlord, v. NEW FASHION 6TH AVE. CORP., Respondent–Tenant. |
| Court | New York Civil Court |
Azoulay Weiss LLP, Albertson, by Edward J. Weiss, Esq. and Elkanna S. Light, Esq., for Petitioner–Landlord.
Law Offices of Joe Zhenghong Zhou and Associates, PLLC, Flushing, by Curt Schmidt, Esq., for Respondent–Tenant.
An inquest took place on September 7, 2016 before the Hon. Devin P. Cohen which resulted in the issuance of a judgment of possession and warrant of eviction. The Respondent–Tenant ("tenant") brings this motion to vacate the judgment of possession and warrant of eviction and to restore this matter to the calendar asserting that it never received the predicate notices or the notice of petition and petition.
The lease between the parties commenced on September 1, 2013 and was set to expire on August 31, 2018. Since the inception of the lease, the tenant never obtained, and prior to the issuance of the Notice to Cure, landlord never requested, tenant to provide proof of commercial insurance as required under ¶ 28 of the lease.
The tenant conducts its retail business at 821 6th Avenue, New York, N.Y. 10001. The lease at issue involves a warehouse. The tenant warehouses items used in its retail business on the demised premises which is located at 1001 Irving Ave., right side ground floor warehouse, in Brooklyn, N.Y. 11237. At oral argument there was no dispute that tenant only accesses the warehouse every day in the mornings for about one hour between 8:10AM and 9:10AM. Tenant's affidavit in support also states as much.
5 Day Notice to Cure
The tenant asserts that the 5 Day Notice to Cure dated June 9, 2016, purportedly served by certified mail on June 10, 2016, addressed to 1001 Irving Ave (right side ground floor), Brooklyn, N.Y. 11237, was not received because the business was closed at the time of the attempted delivery which was July 6, 2016 (exhibit B). The 5 Day Notice to Cure dated June 9, 2016 provided for a cure date of no later than June 20, 2016. In order words, the very first attempt by the U.S. Postal Service to actually deliver the 5 Day Notice to Cure, according to U.S.P.S. tracking records, was a date subsequent to the date by which the tenant had to cure.
The tenant asserts that a second copy of the Notice to Cure dated June 9, 2016, purportedly served by certified mail addressed to 821 6th Avenue, New York, N.Y. 10001, its actual place of business, which was allegedly "left with (an) individual" on June 22, 2016 (exhibit B), was never received. The tracking information from U.S.P.S. provided to the court by the tenant clearly shows that even if the Notice to Cure was in fact received on June 22, 2016 at the second address, the tenant had absolutely no opportunity of curing the default because the date by which the default had to be cured was June 20, 2016. (exhibit C, "that as per section 19 (obtain insurance) you are required to cure the aforesaid violations of your tenancy within FIVE (5) days of the service of this notice upon you, which is no later than 6–20–16").
In summary, both Notices to Cure, even if actually received by the tenant on the dates as reflected in the official records of the U.S. Postal Service, was subsequent to the date tenant had to cure.1
The court has reviewed its file and reviewed the affidavit of service of the Three Day Notice of Termination dated June 23, 2016 and the certified Mail receipts showing a mailing of June 24, 2016, to the same addresses as the Notice to Cure. It appears that the Notice of Termination, served under U.S. Postal Service Certified Mail Receipt 7016 0910 0000 1702 0730, timely reached the tenant at its retail space located at 821 6th Avenue, New York, N.Y. 10001 on or about June 28, 2016. It also appears the Notice of Termination, served under U.S. Postal Service Certified Mail Receipt 7016 0910 0000 1702 0723 was not delivered to 1001 Irving Ave.-right side ground floor, Brooklyn, N.Y. 11237, until subsequent to the Termination date of July 2, 2016.
There was an attempt to serve the Notice of Petition and Petition on July 6, 2016 at 4:58pm at the demised premises. Subsequently, on July 7, 2016 at 11:29AM, the Notice of Petition and Petition were served by conspicuous service. There were additional mailings via certified mail. There is no tracking information provided to the court regarding the certified U.S. mailings of the Notice of Petition and Petition.
The court's postcard (exhibit G), properly addressed to the tenant at the demised premises, giving notice to the tenant that the case was adjourned to September 7, 2016 at 10:00AM in Part 52–Commercial, Room 603 for inquest, was returned to the court with the official postal notification of "RETURN TO SENDER NOT DELIVERABLE AS ADDRESSED UNABLE TO FORWARD."
The landlord does not dispute the following facts: 1) the landlord was aware that the primary place of tenant's business was located at 821 6th Ave., New York, N.Y. 1001 and the landlord picked up the rent check every month at this location until July 2016; the tenant is at the warehouse (the demised premises) from 8:10am to 9:10am in the morning every day; there is no one usually on the demised premises outside the hours of 8:10am to 9:10am; except for the notice eventually received by the tenant, the landlord never requested proof of insurance; the first time tenant learned of the demand for proof of insurance was on July 1, 2016 when a certified letter from the landlord was received with a 3 day notice of termination; liability insurance was purchased on July 1, 2016 with a policy number BP004571P2016 from City Link Insurance Agency, Inc., insuring the tenant and the landlord as an additional insured.
The landlord's attorney's affirmation in opposition makes reference to a final judgment of possession based on a non-payment of rent and "respondents failure to satisfy the judgment amount." This is factually incorrect as the petition is clearly one for holdover without any claim for rent or use and occupancy and there is only a judgment for possession without any reference to a monetary award to the tenant. Inasmuch as the attorneys' affirmation makes reference to an amount claimed without any basis in the petition and there is no affidavit from anyone with personal knowledge, or a cross motion for any relief, the landlord's attorney affirmation is a nullity regarding either a claim for rent or attorneys' fees (see U.S. Natl. Bank Assn. v. Melton, 90 A.D.3d 742 742, 743, 934 N.Y.S.2d 352 [2nd Dept.2011] ). "An attorney affirmation that is not based upon personal knowledge is of no probative or evidentiary significance (see JMD Holding Corp. v. Congress Fin. Corp., 4 N.Y.3d 373, 384–385, 828 N.E.2d 604, 795 N.Y.S.2d 502 [2005] ; Zuckerman v. City of New York, 49 N.Y.2d 557, 563, 427 N.Y.S.2d 595, 404 N.E.2d 718 ; Palo v. Principio, 303 A.D.2d 478, 479, 756 N.Y.S.2d 623 ; Hirsch v. Morgan Stanley & Co., 239 A.D.2d 466, 467, 657 N.Y.S.2d 448 ] )" Warrington v. Ryder Truck Rental, Inc.,
After reviewing the Notice to Cure and the tracking information provided by the tenant, it is clear the Petitioner–Landlord ("landlord") timely and properly served the Notice to Cure by certified mail pursuant to the lease. It is equally clear, however, that the tenant literally had no opportunity to timely cure its default because the notice was not received until after the date to cure had passed. Tenant never had an opportunity, prior to June 20, 2016, to simply obtain a commercial insurance policy. Even the usual application for a Yellowstone injunction could not be employed here because the date to cure had passed. In Long Is. Gynecological Servs., P.C. v. 1103 Stewart Ave. Assocs. Ltd. Pshp., 224 A.D.2d 591, 638 N.Y.S.2d 959 [2nd Dept.1996], the Court held that the following must be shown to obtain a Yellowstone injunction by the tenant:
it holds a commercial lease; (2) it has received from the landlord a notice of default, a notice to cure, or a threat of termination of the lease; (3) the application for a temporary restraining order was made prior to the termination of the lease; and (4) it has the desire and ability to cure the alleged default by any means short of vacating the premises (see, First Natl. Stores v. Yellowstone Shopping Ctr., supra, [21 N.Y.2d 630, 290 N.Y.S.2d 721, 237 N.E.2d 868 ]; Matter of Langfur, 198 A.D.2d 355, 603 N.Y.S.2d 576 ; Stuart v. D & D Assocs., 160 A.D.2d 547, 554 N.Y.S.2d 197 ).
Either the tenant could have cured its default by obtaining a commercial insurance policy as shown by the copy of the proof of insurance submitted by the tenant on the same date it received the notice to cure, or the tenant could easily have prevailed in its application for a Yellowstone injunction because it holds a commercial lease (exhibit A) and the fact that it obtained a commercial policy meets the "desire and ability to cure" if made prior to the cure date. See Long Is. Gynecological Servs., P.C., supra .
The court in ATM One, LLC v. Landaverde, 307 A.D.2d 922, 763 N.Y.S.2d 631 [AD 2nd Dept.2003], affirmed 2 N.Y.3d 472, 779 N.Y.S.2d 808, 812 N.E.2d 298 [Ct. of Ap.2004], was faced with a somewhat analogous situation when a ten-day notice to cure the tenant's default under a residential lease was mailed to the tenant more than ten days before the last date to cure but not received until nine days before the cure date. The notice to cure was pursuant to 9 NYCRR 2508.1 which mandated such notice prior to the commencement of a holdover proceeding based on a tenant default.
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