HOLLAND v. DONAHUE (2019)

The above captioned petitioner commenced this nonpayment summary proceeding seeking to dispossess the respondent's horse from a stable stall. The respondent interposed a written answer dated January 19, 2019, asserting multiple affirmative defenses and counter claims together with a jury demand. At the initial appearance the parties orally stipulated to the fact that the petitioner's rent demand was made via an unresponded to text as well as a voicemail message; and asked the Court to address the issue if such a rent demand meets the requirements of New York RPAPL § 711(2).

 Rent Demand Text/Voicemail

Sec. 711(2) RPAPL provides as follows:

The tenant has defaulted in the payment of rent, pursuant to the agreement under which the premises are held, and a demand of the rent has been made or at least three days notice in writing requiring, in the alternative, the payment of the rent, or the possession of the premises, has been served upon him as prescribed in section 735.

Starting this inquiry with the premise that oral demands are statutorily authorized, Merida v. Morosoff, 51 Misc. 3d 1209(A), 2016 WL 1424375 [Nassau' Dist. Ct. 2016], 1675 Realty Co. v. Quinones, 152 Misc. 2d 393, 576 N.Y.S.2d 995 [N.Y. Civil Ct. 1991], the Court's threshold issue to resolve is by what manner may a landlord make an oral rent demand. New York courts first recognized oral rent demands via a telephone as legally sufficient in 1930.¹ Hutton v. Malkin, 138 Misc. 560, 246 N.Y.S. 757 [N.Y.A.D. 1st Dept. 1930]; See also 104 Realty, LLC v. Brown, et al., 41 Misc. 3d 1228 (A), 2013 WL 6051248 [N.Y.C. Civil Ct. 2013], citing to Schwartz v. Weiss-Newell, 87 Misc. 2d 558, 386 N.Y.S.2d 191 [N.Y.C. Civil Ct. 1976]. An oral demand for rent has been codified by the Courts to have to be “personal” in nature. See, Hotel Concord Inc. v. Callaghan, 161 Misc. 764, 293 N.Y.S. 391 [1st Dept. App. Term 1936]. A personal demand can be made face to face or over the telephone if the communication is between the landlord and the tenant. 104 Realty, LLC v. Brown, et al., cite supra; citing to Schwartz v. Weiss-Newell, cite supra, citing generally to, Tolman v. Heading, 11 App. Div. 264, 42 N.Y.S. 217 [N.Y.A.D. 3rd Dept. 1896].

It is undisputed that the landlord utilized a telephone to make his oral demand. The distinction between the matter at bar and the aforementioned precedent is that the landlord did not actually speak to the tenant in leaving a text and voicemail. This begs the question, is an unanswered text and voicemail sufficiently personal in nature to satisfy the Sec 711 (2) requirements? This Court finds they are not.² The Court, in a summary proceeding, has an “obligation” to determine whether the tenant received sufficient notice of the nature of the alleged default․ and must fairly afford the tenant, at least, actual notice of the alleged amount due. 25-35 Equity Holdings, Inc. v. William Toles, et al., 2000 WL 33403444 [N.Y.C. Civil Ct. 2000]. The Equity Holding Court goes on to opine:

In the case of an oral demand, the allegation that the demand was made assumes that the tenant received the requisite notice. The assumption reflects a legislative “preference for a demand to be personally made”, Zenila Realty v. Masterandrea, 123 Misc. 2d [1] at 3 [472 N.Y.S.2d 980 (1984) ], a practical recognition that ‘in the personal demand, the landlord or his agent is immediately available to the tenant to answer any of the tenant's questions with respect to the demand for rent or to enlarge upon the practical ramifications of a continued default in payment, if the tenant so requires. Emphasis Added.

It is the absence of the ability to establish that the tenant actually received the text or the voicemail that dooms this petition. To be “personal” the parties must be in common communication sufficient to allow for the tenant to make reasonable inquiry of the default and be afforded an opportunity to cure.

A rent demand is a condition precedent to bringing a non payment summary proceeding. See, Oakwood Ter. Hous. Corp. v. Monk, 50 Misc.3d 141(A), 36 N.Y.S. 3d 48, 2016 WL 732931 [App. Term, 9th & 10th Dist., 2016]. Accordingly, the landlord's Sec. 711(2) demand is deficient and this summary proceeding petition is dismissed.

FOOTNOTES

1.   Decision based upon predecessor statute NY Civ. Prac. Act Sec. 1410.

2.   The Court is mindful that an argument can be made that a text is a “writing” which need not be served personally. However, in the absence of a three day notice, it would be ineffective to serve as a rent demand.

C. Stephen Hackeling, J.