This case is not published in a printed volume and its disposition appears in a table in the reporter.
For petitioner: Cathy O'Donnell, Esq., Calabro & Associates, P.C.
For respondents: Matthew W. Greenblatt, Esq. Greenblatt & Agulnick, P.C.
Barbara Jaffe, J.
By pre-answer notice of motion dated September 26, 2007, respondents move pursuant to CPLR 3211(a)(7) for an order dismissing the instant commercial holdover petition upon the ground that it fails to state a cause of action. By notice of cross-motion dated October 5, 2007, petitioner opposes the motion and moves pursuant to NYCRR 130-1.1 for an order awarding it sanctions as against respondents and their counsel.
On August 20, 2007, petitioner served respondents with a three-day notice of cancellation of the lease and notice to quit by August 31, 2007 based on respondents' allegedly chronic failure to pay rent and additional rent between July 2006 and April 2007 pursuant to the governing lease, a stipulation dated March 14, 2007, and a court order dated April 25, 2007. On September 7, 2007, petitioner commenced the instant proceeding by serving on respondents a notice of petition and petition alleging that respondents held over after petitioner terminated their tenancy pursuant to the termination notice.
II. MOTION TO DISMISS
Respondents' principals went to the office of petitioner's counsel on August 30, 2007 and tendered a check for September 2007 rent, which she rejected as petitioner had already served respondents with the three-day notice. (Affirmation of Cathy O'Donnell, Esq., dated Oct. 5, 2007 [O'Donnell Aff.]). Respondents nevertheless, and without petitioner's knowledge, sent their check to what they knew was petitioner's lockbox. ( Id.). The check was delivered to the lockbox on September 3, 2007, and on September 5, 2007, petitioner's bank deposited it without endorsement. (Affirmation of Matthew W. Greenblatt, Esq., dated Sept. 26, 2007 [Greenblatt Aff.], Exhs. B, C, D). Checks sent to the lockbox are neither forwarded nor picked up by petitioner, but are taken by the bank. (Affidavit of Navin Balraj, dated Oct. 5, 2007). Petitioner's agent denies having known of the check before September 6, 2007. (Id.).
Rather than return the check to respondents, petitioner applied it to August 2007 rent arrears, and by letter dated October 2, 2007, petitioner notified ...