Trustees of Columbia University v. Bruncati

• Decision Date: 20 March 1974
• Citation: 77 Misc.2d 547,356 N.Y.S.2d 158
• Parties: TRUSTEES OF COLUMBIA UNIVERSITY, Petitioner-Landlord-Respondent, v. Ron BRUNCATI and Abraham Muslim, Respondents-Tenants, 'James' Alexander, Respondent-Undertenant-Appellant.
• Court: New York Supreme Court — Appellate Term

Page 158

356 N.Y.S.2d 158

77 Misc.2d 547

TRUSTEES OF COLUMBIA UNIVERSITY, Petitioner-Landlord-Respondent, v. Ron BRUNCATI and Abraham Muslim, Respondents-Tenants 'James' Alexander, Respondent-Undertenant-Appellant.

Supreme Court, Appellate Term, First Department.

March 20, 1974.

Demov, Morris, Levin & Shein, New York City (Eugene J. Morris and Kenneth M. Block, New York City, of counsel), for landlord.

Levy, Gutman, Goldberg & Kaplan, New York City (Jeremiah S. Gutman and Eugene N. Harley, New York City, of counsel), for undertenant-appellant.

Before QUINN, J.P., and FINE and FRANK, JJ.

PER CURIAM:

These are three holdover summary proceedings involving controlled premises consolidated for trial. The ground for eviction in each case is based on Rent Eviction and Rehabilitation Regulations, section 52(a) which authorizes the maintenance of a holdover summary proceeding where the 'tenant is violating a substantial obligation of his tenancy * * * and has failed to cure such violation after written notice by the landlord that the violation cease within 10 days.'

Upon such failure to cure, section 53 requires as a further basis for removal or eviction a one month's notice in these particular cases.

The petition alleges the allegations of section 52(a) to which are annexed the notices to cure and the notices terminating the tenancy. The first notice was mailed September 15, 1972, and the termination notice, effective October 31, 1972, was served by substituted or conspicuous service on September 27, 1972.

After trial the Court granted final judgment to landlord against the occupants on the basis that the occupants were squatters.

The occupants' arguments on appeal go to the weight of the evidence and landlord's waiver of violations by occupants, if any.

The dissent disagrees with the final judgments on jurisdictional grounds which warrant reversal thereof.

The record shows that the notices to cure under section 52(a) of the Regulations were served by mail on September 15, 1972. That on September 27, 1972, the notices of termination effective October 31, 1972 were served by either substituted or conspicuous service.

At the time these notices with proofs of service were offered in evidence, the occupants offered no objection to their receipt in evidence except as to their legal effect.

The argument that the service by mail of the ten days' notice to cure carries with it an additional three days to comply therewith pursuant to CPLR 2103(b) (2) and hence the service of the termination notice on September 27, 1972 was premature, is not supported by the latest authorities. That subsection applies to service of intermediary papers on adverse parties or attorneys once a legal action has been duly commenced by service of process (Cosmopolitan Mutual Ins. Co. v. Moliere, 31 A.D.2d 924, 298 N.Y.S.2d 561, 1st Dept.).

The Rent and Eviction Regulations (section 110) provide for service of notices personally or by mail and no reference is made in the Regulations of a three day extension because of mail service.

The Regulations (sections 52 and 53) provide the time table for notices thereunder. In view of the explicit provisions of the Regulations governing notices pertaining to the curing of violations and evictions for failure to comply therewith, the 'three-day rule' in CPLR has no application (cf. Moses v. Bullard Orchards, Inc., 31 A.D.2d 772, 296 N.Y.S.2d 274).

That the trial court decided this case on a ground other than as pleaded and proven, to wit: the violation of a substantial obligation of the tenancy, is not fatal.

This Court can make the determination that should have been done below. Further, CPLR 3017(a) empowers the Court to grant any type of relief within its jurisdiction appropriate to the proof whether or not demanded.

The final judgment should be affirmed on the ground that the tenants violated a substantial obligation of their tenancy in subletting their premises contrary to lease provisions.

Final judgment affirmed, with $25. costs.

FINE and FRANK, JJ., concur.

QUINN, Justice (dissenting).

Landlord-respondent brought these proceedings under Real Property Actions and Proceedings Law sec. 711 on the ground that the named tenants and those claiming under them, the named undertenants-appellants, were holding over after expiration of the named-tenants' terms. The holding-over was Claimed to have occurred when landlord having by due notice afforded the prime tenants a ten-day, unavailed-of opportunity to cure the violation of a substantial obligation of their statutory tenancies (resulting from the subletting to the named undertenants) had thereupon elected to terminate the tenancies on thirty days' notice. None of the tenants appeared, or answered, but the undertenants as they had the right to do, in defense of the possessory rights of their grantors, the prime tenants, under whom they claimed, appeared and answered denying, among other things, service of the essential notices 'as required by law'.

Rent Eviction and Rehabilitation Regulations, sec. 52(a), provides that a summary proceeding by the landlord to recover possession may be maintained where 'The tenant is violating a substantial obligation of his tenancy * * * and has failed to cure such violation After written notice by the landlord that the violation cease Within ten days.' (Emphasis supplied). Obviously a tenant must have ten days from receipt or delivery of the written notice in which to cure the violation (Levine v. Brillon, Mun.Ct., 117 N.Y.S.2d 388; 98 Delancey St. Corp. v. Barocas, Sup., 82 N.Y.S.2d 802). The record shows that although the landlord was given ample opportunity to prove on what date the required ten-day written notices were delivered, he failed to do so. Landlord's counsel rested on proof of the date he Mailed the notices to cure; apparently in the erroneous belief, shared by the court and undertenant's counsel, that CPLR 2103 (which relates only to services of papers in the course of a pending action) had application here. But even if landlord were indulged in the assumption that proof of Delivery of the ten-day notice to cure could be inferred from proof of mailing, plus the allowance of an additional three days, a la CPLR 2103, for transmission through the mail (an unrealistic inference in the face of the notorious uncertainty and irregularity of the mails in recent years) it is, nevertheless, uncontroverted that landlord's proof of notice fell short of affording ten days, plus three for mailing, in which to cure the violation complained of, before the landlord elected to terminate the tenancy by the service of the thirty-day notice. (See Grant v. Morris, 18 A.D.2d 896, 237 N.Y.S.2d 804; Manna v. Corbett, 2 A.D.2d 764, 153 N.Y.S.2d 423).

The burden is on the landlord to allege and Prove compliance with the notice requirements of the Rent, Eviction and Rehabilitation Regulations and the failure of the landlord to prove that it afforded 'the tenant ten days to cure the alleged violation Before terminating the tenancy * * * is a noncurable jurisdictional defect, fatal to the proceeding * * *' (Willace Realty v. Hanson, 66 Misc.2d 203, 204, 319 N.Y.S.2d 966, AT1). Since it is a noncurable jurisdictional defect it can first be urged successfully on appeal even though never raised in the trial court. (Willace Realty v. Hanson, supra). A fortiori, where, as here, it was raised in the trial court but is not urged on appeal, the general, though far from inflexible, rule that it will not be considered on appeal has no application; particularly since it is a fundamental error going to the subject-matter jurisdiction of the trial court. (5B C.J.S. Appeal and Error § 1802, pp. 96, 97....