Civil Court of the City of New York, New York County
October 10, 2013
213 E 26 LLC, Petitioner-Landlord
Walter Channing 213 East 26th Street, Rear Building NEW YORK, NY 10010, Respondent-Tenant MOLLY SEAGRAVE CHANNING, ISABELLA CHANNING, FRANCES A CHANNING, DIEGO ARQUETA, "JOHN DOE" and "JANE DOE"
ROSE & ROSE Attorneys for Petitioner By: David P. Haberman, Esq.
ROZENHOLC & ASSOCIATES Attorneys for Respondent By: Michael B. Terk, Esq.
Sabrina B. Kraus, J.
The underlying holdover proceeding was commenced by 213 E 26 LLC (Petitioner) against WALTER CHANNING (Respondent) the rent stabilized tenant of record, based on allegation that Respondent has failed to maintain 213 East 26th Street, Rear Building
NEW YORK, NY 10010 (Subject Premises) as his primary residence.
On September 26, 2013 the court heard limited argument and reserved decision on the motion.
Petitioner issued a notice of non-renewal dated December 21, 2012 (Notice). This proceeding is the third consecutive holdover proceeding by Petitioner using said Notice as a predicate. The first proceeding under Index Number 62459/2013 was initially returnable in Part D on April 24, 2013, and on said date it was discontinued without prejudice by Petitioner. Respondents never appeared in said proceeding and no affidavit of service for the notice of petition and petition in said proceeding appears to have been filed.
Prior to the discontinuance of the first proceeding, Respondent commenced a second proceeding under index number 62898/2013. Proceeding Two was initially returnable on April 26, 2013 in Part G. The affidavits of service for the petition and notice of petition in Proceeding Two were filed with the court on April 22, 2013, and that is deemed the date of commencement of said proceeding.
On June 11, 2013 Respondents moved for dismissal in Proceeding Two, and Petitioner made an oral application to discontinue without prejudice. Petitioner's application to discontinue without prejudice was granted by the court (Wendt, J.) pursuant to a written decision and order issued June 11, 2013.
This proceeding was commenced on June 6, 2013, the date the affidavit of service was filed for the notice of petition and petition.
A notice of non-renewal used as a predicate in a prior proceeding may be reused as a predicate in a subsequent proceeding, where the subsequent proceeding was commenced prior to the discontinuance of the prior proceeding, and where the tenant has been caused no discernible prejudice [ 145 East 16th Street LLC v Spencer 36 Misc.3d 128 (A)(AT 1st Dept); 890 Park LLC v Rosenfeld 34 Misc.3d 130(A)(AT 1st Dept)].
The court finds that the Notice was not stale and that no discernible prejudice has been caused to Respondent by allowing Petitioner to reuse the Notice after having corrected procedural defects asserted by Respondents to have existed in the prior proceeding. Respondent's motion to dismiss on this basis is denied.
Respondents also seek dismissal of the proceeding based on their allegation that Petitioner accepted rent after the service of the Notice. The Notice terminated Respondent's tenancy effective March 31, 2013. Respondent asserts that Petitioner accepted rent for March and April in April 2013, pursuant to a check cashed by Petitioner on April 30, 2013. Petitioner submits no sworn statement denying that it received and accepted this payment, rather Petitioner argues that the proof attached by Respondent to the moving papers is insufficient to warrant summary judgment on this point. However, it is uncontested that the Petitioner cashed the check and received the funds as of April 30, 2013.
Petitioner argues that said acceptance was after the second proceeding had already been commenced, and thus does not require dismissal in accordance with RPAPL 711(1). The second proceeding was commenced April 22, 2013, and initially returnable April 26, 2013. Thus, the check was certainly cashed after the commencement of the second proceeding.
While there is no sworn statement by Respondent in its moving papers as to the date the check was tendered. In its reply papers, Undertenant, Respondent's wife swears under oath that she mailed the check on April 1, 2013, and that she simply forgot to write in the April 1, 2013 date on the check. Undertenant asserts that even if Petitioner cashed the check after the commencement of the proceeding, Petitioner received it and held onto it prior to said commencement. However, the court notes that the check at issue is check # 2647. The same exhibit shows that checks 2642 through 2626 were written on April 15, 2013. Check # 2646 was written on April 18, 2013. Presumably there were other checks issued on the same account between April 1, and April 15.
Based on the foregoing, the court finds that there remain questions of credibility and fact which can not be determined on these motion papers, in regards to this alleged defense and as such the motion to dismiss based on said defense is denied without prejudice to Respondent's right to assert the defense at trial.
Respondent also moves for dismissal based on the argument that the Notice is defective because the alternate address contained in the notice is not a residence, but a business. However, whatever the exact address of Respondent's business which is a winery, there is also a residence nearby with a similar address. The purpose of the Notice is to apprise the Respondent of the grounds of the holdover proceeding and the court finds that the Notice served is reasonable under the circumstances (Hughes v Lenox Hill Hospital 226 A.D.2d 4) and meets this requirement. Respondent's motion to dismiss on this ground is denied.
Respondent asserts that even though the Notice was mailed 93 days prior to the expiration of Respondent's lease, it was untimely, because additional time was not added for mailing. This court rejects said argument and finds the Notice was timely mailed (21 W 58 St v Foster 44 A.D.3d 410; 85 Columbus Corp v Cooperman 45 A.D.3d 358; Skyview Holdings LLC v Cunningham 13 Misc.2d 102).
Respondent also argues that failure to serve a copy of the Notice at 1947 Scuttlehole Road, Bridgehampton, NY, the aforementioned residence, requires dismissal. Respondent provides no evidence that Petitioner had written knowledge of said address. More importantly, RPAPL§ 735 only requires service at an additional addresses if the Subject Premises is not the residence of Respondent. Respondent has submitted no affidavit at all in the motions. It is asserted that Respondent suffers from dementia. However, his wife asserts that it is untrue that Respondent moved to Bridgehampton and that the Subject Premises is his residence. As such, Respondent's position is that the Subject Premises is his place of residence, and therefore no additional mailing was required.
The last point of Respondent's motion asserts that Respondent was not properly served with the notice of petition and petition. This is supported by the affidavit of Respondent's daughter who merely asserts that 7 copies of the notice of petition and petition were not affixed to the door, but does not state how many copies were affixed to the door, and denies receipt by mail. In her affidavit in reply, Respondent's daughter acknowledges that at least two copies were posted on the date and time alleged by the process server, and that additionally copies may have been posted but have fallen off by the time she arrived home.
Petitioner, in addition to the affidavit of the process server, provides an affidavit from counsel who witnessed the seven copies being posted, and provides a picture of the seven copies posted. Thus, it is undisputed that the process server posted 7 copies as asserted in his affidavit and no hearing is required on this issue.
Finally, in Respondent's moving papers receipt by mail is merely denied. As correctly argued by Petitioner this is insufficient to require as traverse hearing (Grinshpun v Borokhovich 100 A.D.3d 551). The allegation in the reply affidavit that Undertenant believes this because the mailing address used was incorrect does not require otherwise (WalMart Stores Inc v United States Fidelity and Guaranty Company 11 A.D.3d 300).
Based on the foregoing, Respondent's motion to dismiss is denied and the proceeding is restored to the calendar for all purposes on October 25, 2013 at 9:30 am.
This constitutes the decision and order of this court.