Two recent cases, one from Bronx Civil Court and the other from Nassau County District Court, remind us of the harsh reality that avoidable mistakes made in the preparation of predicate notices and the pleadings will result in the dismissal of your summary proceeding.
The Court in 3414 KNOS LLC v. Bryant, L&T 014058/10, NYLJ 1202477575221, at *1 (Civ., BX, Decided December 30, 2010) dismissed a nonpayment proceeding after Respondent defaulted, the warrant of eviction was issued and after Respondent defaulted in appearing on the initial return date of his motion to vacate the default judgment and warrant. Respondent, represented by counsel, thereafter again moved to vacate the judgment and warrant and to dismiss the proceeding alleging improper verification and that the proceeding was commenced by a party who had no interest in the premises.
Petitioner admitted a mistake was made by counsel in drafting the petition in that “Inadvertently counsel used the name of the owner of the property instead of the leaseholder.”
The Court held “A petition brought by someone not authorized as required by RPAPL § 721 is jurisdictionally defective and must be dismissed.” The Court found that the named petitioner “had no right to institute the proceeding against respondent in order to obtain possession. There must be privity between the parties.”
This mistake, which the Court held was not capable of correction by amendment and thus resulted in the dismissal, could have been avoided by carefully reviewing to the lease and by naming the designated landlord as the petitioner in the nonpayment proceeding.
The Court in Service Station Realty Corp., v. RMAK Corp., LT-005797-10, NYLJ 1202477111784, at *1 (Dist., NA, Decided December 23, 2010) dismissed the commercial holdover proceeding holding “Where a notice is required to be given prior to the commencement of a summary proceeding the petition must show that it has been duly given. Failure to allege these facts renders the petition jurisdictionally defective.” The Court cited its decision in an earlier matter in which it held “The petition should state that the termination notice was served upon the tenant and the facts regarding service or, in the alternative, at least provide same to the Court with the pleadings.” Higbie v. Ripka, 2002 NY Slip Op 50018U.
In this case, the petition alleged that a written 30 day termination notice had been served and that a copy of the notice with proof of service was annexed to the petition. However, the notice to cure, the notice to terminate and their affidavits of service were not attached to the petition. The petition also alleged that the lease term expired September 1, 2010. But, contradicting these allegations in the petition, in opposition to respondent’s motion to dismiss, petitioner alleged that a cure notice was mailed August 6, 2010 and that the termination notice was served August 20, 2010-certainly not 30 days before the alleged September 1, 2010, termination date alleged in the petition.
In granting respondent’s motion to dismiss, the Court held: “Here the petitioner has not established that it prepared and properly served a legally sufficient termination notice.” While stating that “Pursuant to the lease, a notice of termination was required” the Court did not discuss or reference the specific lease clauses and whether, in the absence of the mistaken allegations in the petition, the notices complied with the specific lease requirements. It may be that the notices complied with the lease but that a preprinted form petition was used and the applicable form language was not deleted or modified to comply with the lease requirements and with what actually transpired.
Nevertheless, the mistakes made and the result here could have been avoided by thoroughly reviewing the lease requirements, preparing and properly serving the appropriate predicate notices and carefully drafting the petition to allege facts supporting your claims.