Ocean Farragut Associates v. Sawyer

• Citation: 119 Misc.2d 712,464 N.Y.S.2d 346
• Parties: OCEAN FARRAGUT ASSOCIATES, Petitioner-Landlord, v. Henry and Barbara SAWYER, Respondent-Tenant.
• Decision Date: 16 June 1983
• Court: New York City Court

Page 346

464 N.Y.S.2d 346

119 Misc.2d 712

OCEAN FARRAGUT ASSOCIATES, Petitioner-Landlord, v. Henry and Barbara SAWYER, Respondent-Tenant.

Civil Court of the City of New York,

Kings County, Trial Term,

Part 15.

June 16, 1983.

Hurkin & Pomerantz, Brooklyn, for petitioner-landlord, Ocean Farragut Associates; Robert Pomerantz, Brooklyn, of counsel.

Seavey, Fingerit, Vogel & Oziel, New York City, for respondent-tenants, Henry and Barbara Sawyer; Robert I. Oziel, New York City, of counsel.

DECISION

IRA B. HARKAVY, Judge.

Is a continuous pattern of late payment of rent, coupled with the issuance of "bad" checks resulting in nine non-payment proceedings, the type of action that a tenant can cure upon the service of a holdover proceeding based upon the above actions? Can the course of conduct of late payment of rent be cured pursuant to section 753(4) of the RPAPL?

Respondent-Tenant (hereinafter referred to as Tenant) has resided in the apartment in question since October 1976. Commencing with February 1979 through August 1982, when the notice of termination was served, Petitioner-Landlord (hereinafter referred to as Landlord) issued nine dispossesses for non-payment of rent, each for at least two months' back rent. Tenant never disputed the dispossesses, and without going to court on any of them always paid the amount claimed plus Landlord's costs. In addition, Tenant has issued eleven checks to the Landlord which were returned for insufficient funds during the period from December 1979 through December 1981. Tenant further admits that when rent was paid, it was paid late in the month and not when due.

Landlord commenced the instant holdover proceedings to remove the tenant based upon the course of conduct of non-payment of rent and the issuing of the "bad" checks compelling the Landlord to bring numerous non-payment proceedings. Tenant's defense is that the notice to cure is defective and that in February 1983, after the proceedings commenced, the Landlord did not repair the bathroom ceiling for a week after it fell down due to a water leak upstairs. Tenant also claimed that the Landlord's acceptance of all outstanding rent in August 1982 after service of the notice of termination, which was to take effect on September 30, 1982, was a waiver of the notice of default and termination and a cure of any alleged violation.

It has been continuously held that where a landlord is compelled to bring repeated summary proceedings for non-payment of rent, there is established a prima facie violation of the substantial obligation to pay rent when due, and the offending tenant is subject to eviction as a holdover, after appropriate notice of termination. Stern v. Carroll, 28 Misc.2d 507, 219 N.Y.S.2d 820; Des Jardins v. Owens, N.Y.L.J. April 23, 1980, pg. 6, col. 2 (AT 1), aff'd 81 A.D.2d 758, 439 N.Y.S.2d 226; NKR Management Corp. v. Jacobs, N.Y.L.J. May 21, 1981, pg. 6, col. 1. The obligation to pay rent under a lease in a timely manner is a primary obligation of a tenancy. Sanfilippo v. Coster, 91 N.Y.S.2d 738, 740.

In 535 Hudson Realty Co. v. Simon, N.Y.L.J. June 9, 1983, pg. 12, col. 3, the Appellate Term First Department stated "Here Tenant's persistent and unexplained failure to timely meet his rental obligations led to the commencement of at least nine non-payment proceedings within a period of two and one half years. Given this pattern of default, the granting of the within holdover petition was warranted."

In the same manner, we have nine dispossesses issued between February 1979 and August 1982 (seven of them between January 1981 and August 1982) together with eleven returned checks and a history of late payment. The granting of a final judgment in favor of the Landlord herein is well warranted.

Tenant claims that the whole proceedings are invalid, because the notice to cure dated May 12, 1982 is defective in that it was issued by "Pasamyo Realty, Inc. by Kellner & Livingston, Inc., Agent." instead of Ocean Farragut Associates by Kellner & Livingston, Inc., Agents. Tenant admits that Kellner & Livingston was the agent for the property and that Tenant knew and understood the notice and the ramifications thereof. The trend in Landlord and Tenant proceedings for the past few years has been to ignore the possible technical defects and decide the case on its merits. See Phillips v. Mason, N.Y.L.J. June 29, 1982, pg. 5, col. 1 (AT 1). In the Phillips case, supra, the Appellate Term, First Department held that the failure to sign a petition was not a sufficient defect to dismiss the proceedings. Mistakes in the name of a party have been permitted to be corrected by amendment. Ryan v. Nationwide, 20 A.D.2d 270, 247 N.Y.S.2d 243. In Jackson v. New York City Housing Authority, 88 Misc.2d 121, 387 N.Y.S.2d 38, the Court stated that where the Court has subject matter jurisdiction, the petitioner can amend mere irregularities.

In the instant proceedings, Tenant does not claim any actual harm due to the wrong Landlord being listed on the notice to cure, and in fact admits that Tenant knew the nature of the notice...