SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS Appellate Term, Second Department
November 30, 2011
FOREST HILLS SOUTH OWNERS, INC., RESPONDENT,
KAZUKO ISHIDA, APPELLANT.
Appeal from a final judgment of the Civil Court of the City of New York, Queens County (Gilbert Badillo, J.), entered October 2, 2009.
Forest Hills S. Owners, Inc. v Ishida
Decided on November 30, 2011
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This opinion is uncorrected and will not be published in the printed Official Reports.
PRESENT: STEINHARDT, J.P., PESCE and WESTON, JJ
The final judgment, after a traverse hearing and a non-jury trial, awarded landlord possession and the sum of $1,350.66 in a nonpayment summary proceeding.
ORDERED that the final judgment is affirmed, without costs.
In this nonpayment proceeding, the credible evidence at a traverse hearing established that the petition and notice of petition had been sent by both certified and first-class mail, and tenant's denial of receipt of the copy sent by first-class mail was properly determined to be insufficient to support a finding of improper service (EBC Amro Asset Mgt. v Kaiser, 256 AD2d 161 ). Tenant's claim that service of the rent notice was defective was waived by her failure to assert it in her answer (Citi Land Servs., LLC v McDowell, 30 Misc 3d 145[A], 2011 NY Slip Op 50387[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). With respect to tenant's claim of tender and payment, the proof established that tenant had tendered a check for January 2009 rent which was not made out to the order of a specified person or to bearer, and that landlord had promptly returned the check, requesting that tenant amend it. Tenant refused to do so, even when subsequently asked in court to do so or to issue a new check. Moreover, the proof further established that, in April 2009, tenant had tendered a check for the April 2009 rent and marked it "no outstanding amount," while the January rent was still outstanding. Landlord promptly returned that check as well, and tenant, in court, also refused to amend or replace that check. Under the circumstances, the Civil Court properly rejected tenant's defense of tender and payment (cf. Merrill Lynch Realty/Carll Burr, Inc. v Skinner, 63 NY2d 590 ).
Accordingly, the final judgment is affirmed.
Steinhardt, J.P., Pesce and Weston, JJ., concur.
Decision Date: November 30, 2011
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