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LLC v. Kyung Sik Kim

Other Lower Courts

January 24, 2008

496 Broadway Realty, LLC, and 496 Commercial Realty, LLC, Plaintiff(s)/, Petitioner(s),
v.
Kyung Sik Kim and Think Soho Inc., Defendant(s)/, Respondent(s).

Editorial Note:

This case is not published in a printed volume and its disposition appears in a table in the reporter.

COUNSEL

Attorney for Petitioner: Mark D. Mermel, Esq.

Attorney for Respondent Stephen Latzman, Esq.

OPINION

Manuel J. Mendez, J.

Upon a reading of the foregoing cited papers on this motion and cross motion for summary judgment it is the decision and order of this court that the motion is granted and petition is dismissed. The Notice to cure is inadequate, the Notice of termination was served prior to the expiration of the cure period and fails to contain sufficient facts supporting grounds for termination.

In this Commercial Holdover Summary Proceeding respondent Kyung Sik Kim/ Think Soho, Inc., moves for an order granting summary judgment dismissing the proceeding on grounds that the ten (10) day Notice to Cure is equivocal, ambiguous and therefore defective, and on grounds that the Notice of Termination was served on respondent prior to the expiration of the cure period. Petitioner likewise moves for summary judgment on grounds that Respondent has failed to cure the lease violations as contained in the Notice to cure. Petitioner alleges that Respondent's lease was properly terminated in accordance with the terms of the lease and after the Cure period had expired.

Respondent rents premises located at 496 Broadway pursuant to a lease dated December 1, 1999. The Lease was extended on December 11, 2002 for an additional five (5) years and is due to expire on December 14, 2009. On May 29, 2007 Petitioner purchased the building and became the owner of the premises. On July 5, 2007 Petitioner sent Respondent a letter advising him of "a change of address for notices to landlord" and at the same time giving him a "ten (10) day Notice to cure tenant's defaults". The affidavit of service annexed to the notice to cure states as follows:

"On July 5, 2007 I served a 10 day notice to cure tenant's defaults upon Kyum Sik Kim ( Think Soho, Inc.) At ground level 496 Broadway New York, New York 10012 the address designated by said individual/ corporation/tenant for that purpose by depositing a true copy of same enclosed in a post-paid properly addressed Express Mail wrapper and an additional copy of same enclosed in a post-paid, properly addressed wrapper by Certified Mail, return receipt requested in an official depository under the exclusive care and custody of the U.S. Postal Service within the State of New York." This affidavit is signed by Grace Giammona.

The lease in Paragraph 4 sets forth the manner for giving notices between Landlord and Tenant. It states:

" Any bill, statement or notice must be in writing and mailed or hand delivered to the tenant at the premises and to the landlord at the address for notices. Any notice must be sent by certified mail or express mail [signature required]. It will be considered delivered on the day mailed if sent by overnight mail or five days after the date mailed if sent by regular mail or, if not mailed, when left at the proper address..."

In accordance with the lease provision at Paragraph 4, when any notice is sent by mail or when it is left at the address, notice will be considered delivered five ( 5) days after the date mailed or left at the address. Only when notice is sent by "Overnight mail" is notice considered delivered on the date mailed. The affidavit of service of the notice herein does not state that It was sent by overnight mail, it only states that it was sent by express mail. When the written lease between the parties contains requirements for service, the lease provisions must be complied with for service to be proper ( Bogatz v. Extra Touch International, Inc., 179 Misc.2d 1029, 687 N.Y.S.2d 558 [Civ. Ct. Kings 1999]; Scherer, Residential Landlord Tenant Law 8:243). The notice to cure sent by mail will be considered delivered five ( 5) days after mailing, which would give Respondent until at least July 20, 2007 to cure any lease violations.

The Notice of termination was mailed on July 17, 2007 in the same manner as the notice to cure. The cure period expired on July 20, 2007, three days after the mailing of the notice of termination. This notice to terminate fails to state the grounds for petitioner's recovery of possession, it simply refers back to the notice to cure. This notice of termination was mailed prematurely and fails to set forth specific facts to establish the grounds for the landlord to recover possession ( Chinatown Apartments, Inc., v. Chu Cho Lam,51 N.Y.2d 786, 433 N.Y.S.2d 86, 412 N.E.2d 1312 [1980]; Scherer, Residential Landlord Tenant law, 8:267), it is therefore inadequate, premature and ineffective ( 542 Holding Corp., v. Prince Fashions Inc.,848 N.Y.S.2d 37, 2007 NY Slip Op 09869 [1st. Dept. 2007]). Defects in a notice of termination cannot be cured by ...


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