SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
March 1, 2011
Appeals from an order of the Justice Court of the Town of Carmel, Putnam County (Joseph J. Spofford, J.), entered March 9, 2009, and from a final judgment of the same court entered September 21, 2009.
Jacobson v Raff
Appellate Term, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
Decided on March 1, 2011
PRESENT: NICOLAI, P.J., MOLIA and LaCAVA, JJ
The order denied tenant's motion to dismiss the petition. The final judgment, after a non-jury trial, awarded landlord possession and the sum of $6,150.
ORDERED that the appeal from the order entered March 9, 2009 is dismissed; and it is further,
ORDERED that the final judgment is reversed, without costs, the order entered March 9, 2009 is vacated and tenant's motion to dismiss the petition is granted. Any funds that have been deposited by tenant into the Justice Court are directed to be released to tenant.
In this summary proceeding, the petition alleges both a holdover cause of action and a nonpayment cause of action. Tenant moved to dismiss the petition on the grounds, among others, that the petition pleaded inconsistent causes of action and that service of the predicate notices was defective. The motion was denied by order entered March 9, 2009. After a non-jury trial, landlord was awarded a final judgment of possession and the sum of $6,150.
The appeal from the order entered March 9, 2009 must be dismissed as the right of direct appeal from this intermediate order terminated upon the entry of the final judgment (see Matter of Aho, 39 NY2d 241, 248 ). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the final judgment (see CPLR 5501 [a] ).
While, under certain circumstances, inconsistent causes of action for
nonpayment of rent and holding over after the termination of a tenancy
may be pleaded in the alternative (see Matter of Kern v Guller, 40
AD3d 1231 ; Azour, LLC v Tax Sisters, Inc., 29 Misc 3d 29 [App
Term, 2d, 11th
& 13th Jud Dists 2010]), here service of the predicate notices underlying
each cause of action was defective and tenant's motion to dismiss the petition should have been granted.
The affidavit of service of the three-day notice underlying the holdover cause of action indicates that the notice was served by regular mail. However, the lease requires that service of such a notice be made by certified mail. "Because equity abhors forfeitures of valuable leasehold interests, courts have required strict compliance with the termination provision of leases" (Metropolitan Transp. Auth. v Cosmopolitan Aviation Corp., 99 AD2d 767, 768 ; see Lerner v Johnson, 167 AD2d 372, 375 ). We note, in any event, that landlord's attorney conceded, in his affidavit in opposition to tenant's motion, that this three-day notice did not "declare the termination of the lease agreement" and, thus, the notice was ineffective to terminate the lease. Consequently, landlord's holdover cause of action should have been dismissed.
The nonpayment cause of action should have also been dismissed, because the three-day notice required under RPAPL 711 (2) was not served upon tenant as prescribed in RPAPL 735. The affidavit of service established that the three-day notice was sent to tenant only by regular mail. Landlord's failure to comply with the service requirements of the RPAPL mandates the dismissal of the nonpayment cause of action (see Seaton v Chavez, 11 Misc 3d 135[A], 2006 NY Slip Op 50481[U] [App Term, 9th & 10th Jud Dists 2006]).
Accordingly, the final judgment is reversed, the order denying tenant's motion to dismiss the petition is vacated, and tenant's motion to dismiss the petition is granted. Any funds that have been deposited by tenant into the Justice Court shall be refunded to tenant.
Nicolai, P.J., Molia and LaCava, JJ., concur.
Decision Date: March 01, 2011
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