Last month’s blog discussed defective default notices and the need to strictly comply with lease provisions. We continue that theme this month with two cases recently decided by Nassau County District Court Judge Scott A. Fairgrieve. In The Retail Property Trust v. SHNS Corp. d/b/a J&A Gallery, 003192/10, NYLJ 1202464430374, at *1 (Dist., NA, August 4, 2010) Judge Fairgrieve granted a tenant’s motion to dismiss based on a defective default notice that was required by the lease. In this case the parties’ lease required landlord to serve a ten (10) day notice upon the tenant for a default in the payment of taxes. The landlord served a three (3) day notice which, not surprisingly, the court deemed deficient because the lease required a ten (10) day notice.
The more important lesson of this case, other than the need to comply with lease requirements, involved the subsequent ten (10) day notice actually served by landlord and provided in response to the tenant’s motion to dismiss. First, the ten day notice was not filed with the petition filed with the court, which, depending on the contents of the petition, could have served as an independent bases to dismiss. But, Judge Fairgrieve determined that even if the ten day notice was considered, it was nevertheless defective because “it fails to provide a breakdown of monies owed.” The Court noted that the ten day notice included an aggregate sum of monies allegedly due.
Failing to provide a detailed breakdown of monies owed resulted in a finding that the notice was facially defective because it did not inform the tenant of the specific amounts due and the period for which the sums were claimed due. The simple way to avoid this result is to be as detailed and specific as possible when drafting rent demands and default notices and always comply with the lease. Less is certainly not more.
In Thomas Santanastasio v. Florence Denoto a/k/a Florence Dinoto, SP 002949/10, NYLJ 1202464396901, at *1 (Dist., NA, July 29, 2010), Judge Fairgrieve again found predicate documents defective resulting in dismissal of the proceeding. In this case, the tenant was a month-to-month tenant pursuant to an oral lease. On March 16, 2010, tenant signed a confession of judgment agreeing to pay past due rent. The next day, March 17, 2010, landlord and tenant signed a stipulation pursuant to which landlord agreed not to file the confession if certain weekly payments were made. Landlord agreed to give tenant a signed notice of default if the required payments were not made.
The payments were not made and landlord commenced a holdover proceeding. Judge Fairgrieve granted a motion to dismiss finding that the confession of judgment did not comply with the specificity requirements of CPLR 3218(a)(2) because it did not include a full statement of the facts. The factual statement in the confession of judgment merely stated: “[a] debt is justly due to the Plaintiff arising out of the following Oral Lease Agreement for rooms at the subject premises.” The Court ruled that the factual statement was inaccurate because only one room was leased and was deficient because it did not include the dates when payments were “to be made, the amount and the anniversary date.” The Court also noted that Landlord failed to give a default notice to tenant as required by the stipulation.
Finally, the Court held “[a] 30-day notice is required to terminate a month-to-month tenancy outside The City of New York” and the stipulation of settlement in this case did not qualify as a 30-day notice. See RPL 232-b. In this case, a simple 30-day notice would have served as a proper predicate to terminate the month-to-month tenancy. Thereafter, in addition to a judgment of possession, a money judgment could have been obtained at a subsequent holdover proceeding, This process would have simplified the issues presented to the Court and avoided costly motion practice.
In sum, in preparing predicate notices, it is important to be as detailed as possible and be certain to comply with any relevant statute.