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Civil Court, City of New York.

Janet Doherty and ETC CUSTODIAL FBO JANET T DOHERTY IRA, Petitioner, v. Deli and Grocery El Sol Corp. D/B/A EL SOL DELI 68 NEW DORP PLAZA SOUTH STATEN ISLAND, NEW YORK 10306, Respondents.

Index No. LT-300968-22/RI

Decided: November 01, 2022

Petitioner's Counsel Jacobi, Sieghardt, Bousanti, Piazza, & Fitzpatrick, P.C. 235 Forest Avenue, Staten Island, NY 10301 (718) 442-4600 Respondent's Counsel Elina Lecour, Esq. 884 Castleton Ave Staten Island, NY 10310-1811 (718) 448-5448

Recitation, as required by CPLR § 2219 (a), of the papers considered in the review of this application:

Respondent Deli and Grocery El Sol Corp. d/b/a El Sol Deli ("Respondent") moves this Court for an Order pursuant to CPLR § 3212 and § 409(b) granting Respondent summary judgment and dismissing the proceeding based upon a "fatally defective and unamendable predicate notice herein and defective service of the Petition." Petitioner Janet Doherty and ETC Custodial FBO Janet T, Doherty IRA ("Petitioner") cross-moves this Court for an Order granting the Petitioner

(1) summary judgment, (2) final judgment of possession with the issuance and execution of the warrant of eviction forthwith and (3) a personal money judgment against the Respondent herein in the sum of $8,000.00 for use and occupancy of the premises for June 1, 2022 through September 30, 2022. Based upon the arguments of the parties and the papers submitted in connection with the Motion and Cross-Motion, the Court herby denies Respondent's Motion and grants Petitioner's Cross-Motion as described below.

Petitioner commenced this commercial landlord-tenant case by filing a Notice of Petition and Petition ("Petition") on June 2, 2022. According to the Petition, Respondent is a tenant at the Premises located at 68 New Dorp Plaza South, Staten Island, NY 10306 (the "Premises") and entered into possession under a certain oral lease on or about May 1, 2020 (the "Lease"). Petitioner represents that Respondent continues to possess the Premises despite the expiration of the Lease on May 31, 2022. In the Petition, the Petitioner states:

At least 30 days before the expiration of said term with Respondent tenant was served in the manner provided for by law with a notice in writing a copy of which with proof of service is annexed hereto and made a part of this petition, that the landlord elected to terminate said tenancy and that unless the tenant removed from said Premises on the day on which said term expired the landlord would commence summary proceedings under the statute to remove said tenant therefrom.

In its Motion to Dismiss, Respondent concedes that it does occupy the Premises pursuant to an oral commercial month-to-month agreement with co-Petitioner Janet Doherty ("Doherty") as landlord and that such agreement was made on or about May 1, 2020.

Respondent represents that on April 30, 2022, a "purported 30-Day Notice" was served on upon Zenaida Munoz Ponce ("Munoz"), who is the President of the Respondent company. According to Respondent, this notice ("First Notice") was not received through the mail and it failed to state (i) the alleged date by which the Respondent's tenancy would terminate, (ii) the date by which Respondent was required to vacate the Premises or (iii) the basis for the alleged termination. Respondent maintains that on April 28, 2022, Petitioner served another "purported 30-day notice of termination" ("Second Notice") upon Munoz and that such was followed up by "alleged mailings thereof by regular mail and certified mail." Respondent maintains that the Second Notice, dated April 27, 2022, "falsely alleges that the Tenant's tenancy at the Premises had expired, and that the tenancy has existed pursuant to a 'lease' "

According to the Respondent, the Petition should be dismissed since the Petitioner "served two different, vague and inconsistent purported termination notices", which rendered Petitioner's predicate notice fatally defective and incurable. Respondent represents that in addition to the failure of the First Notice to inform Respondent of the alleged termination date, the Second Notice did not contain any indication that it superseded the First Notice. "Thus, Tenant was left to guess which notice to go by and what date did Petitioners allege was the termination date- was it May 13, 2022, or some other indescribable date not stated in the First Notice, or was it May 31, 2022, as alleged in the Second Notice." Petitioner further argues that regardless of how the Second Notice was interpreted, it clearly contains contradictory substantive allegations that the tenancy was a month-to-month tenancy and that a lease had existed and expired, "leaving Tenant to guess what was Petitioner's actual allegation." Finally, Respondent argues, service of such two inconsistent purported termination notices on different dates, "materially misled or prejudiced" the Respondent in responding to the Petition.

In opposition to Respondent's Motion, Petitioner's counsel represents that the Petitioner served the First Notice to the Respondent prior to retaining counsel in this matter. Such notice, Petitioner's counsel argues, "was not a formal notice, and did not contain a termination date in said notice." Counsel states that their office prepared and served Respondent with a 30 Day Notice to Tenant dated April 27, 2022, with an expiration date of May 31, 2022. Petitioner argues that it was not required to state in the Second Notice that such was superseding any prior notices sent to the Respondent and that there was no confusion in the Second Notice, which contained the expiration date of May 31, 2022. With respect to Respondent's reliance regarding the alleged defectiveness of the notices, Petitioner argues that there was no defect in the predicate notice attached to the Petition, which is the Second Notice, and that the case law that Respondent cites is not controlling.

Petitioner further refutes Respondent's argument that the Petition was improperly served by failing to mail a copy of the papers to the correct corporate name since personal service was effectuated upon Munoz, not substituted service. In support of its cross-motion for summary judgment, Petitioner includes an affidavit by Doherty, who represents that the Respondent was a month-to-month tenant at the Premises and paid a monthly rent of $2,000.00. According to Doherty, Respondent last paid the rent for the month of May 2022 and has not made any further payments since that time. Therefore, Doherty asserts, she is requesting the Court grant her a personal money judgment against the Respondent for use and occupancy of $2,000.00 per month for the months of June, July, August and September 2022 at a total of $8,000.00. Doherty also requests a final judgment of possession and that a warrant of eviction be issued and executed.


Respondent's Motion to Dismiss

Based upon the papers submitted in connection with the Respondent's motion, the Court finds that Defendant has failed to demonstrate that the Action should be dismissed. Turning to the Respondent's argument that the action should be dismissed due to a defective notice, the Court finds the Respondent's arguments to be unavailing.

In the matter of Chinatown Apartments, Inc. v. Chu Cho Lam, 51 NY2d 786, 788 [1980], a landlord served the tenant with a Notice of Intention to Terminate Occupancy and indicated that the tenancy would terminate automatically after service of the notice unless the tenant acted within 10 days to cure the alleged breach. In the notice, the landlord indicated that a "partition" had been constructed on the premises in violation of the Lease. However, the Court of Appeals noted, the respondent did not construct a partition, but rather a freestanding, cube-like structure which stood in the center of one of his rooms. The Court of Appeals held that even if the notice was sufficient to apprise the respondent of the condition that the petitioner wanted to have cured, the Court "would nevertheless be compelled to hold that the notice was ineffective and could not serve as the predicate for an automatic termination of the tenancy." (Id). The Court of Appeals held that "the deficiency in the notice arises from its failure to cite any specific prohibition in the lease which had been violated by the construction of the 'cube' and that none of the cited clauses from the Lease in the notice prohibited the respondent from erecting a freestanding structure such as the one he built." (Id). The Court further determined that "inasmuch as service of a proper notice of intention to terminate occupancy was a condition precedent to the termination of the tenancy under the lease, the deficiency in the notice deprived petitioner of a predicate for reclaiming possession of the premises" and the petition was properly dismissed. (Id.)

While Respondent relies upon this case and others that cite to it to support its position that the petition must be dismissed as improper, the Court finds that the procedural history of this matter is quite different from that contained in Chinatown Apartments. In Chinatown Apartments, the Court concluded that the respondent would not be expected to take remedial action until the petitioner indicated that such was required by the lease. Here, the language contained in the Second Notice clearly indicates that the Petitioner was electing to terminate the month-to-month tenancy oral lease agreement, which Respondent initially conceded existed in the Affirmation in Support. The Second Notice, titled "30 Day Commercial Notice to Tenant on Non-Renewal of Lease, Termination of Tenancy and Intention to Recover Possession" reads as follows:

PLEASE TAKE NOTICE that the Landlord (Janet Doherty and ETC Custodial FBO Janet T. Doherty IRA) hereby elects to terminate your tenancy of the Premises described as, 68 New Dorp Plaza South, Staten Island, New York 10306, now held by you under monthly hiring. Your lease of said Premises has expired.

Unless you remove from said Premises on May 31, 2022, the day on which your term expires, the Landlord will commence appropriate proceedings to recover possession of said Premises and to remove you from said Premises for the holding over after the expiration of your term, and will demand the value of your use and occupancy of the Premises during such holding over Dated: April 27, 2022.

Clearly, the language contained in the Second Notice indicates that the parties had a month- to-month tenancy that the Petitioner was electing to terminate. The Second Notice also provides the date upon which the term expired and indicated that if Respondent did not vacate the premises on May 31, 2022, then the Petitioner would take summary proceedings against Respondent and seek a judgment for the use and occupancy during a holdover period. Respondent has failed to demonstrate how this language equates to the notice in Chinatown, in which the Respondent did not know the specific provision of the lease that was allegedly breached and therefore could not be expected to take remedial action. Unlike the Respondent's arguments to the contrary, the Court also finds that the language contained in the Second Notice is clear, unambiguous and reasonable under the attendant circumstances. (Cf. Singh v. Ramirez, 20 Misc 3d 142(A) [App Term 2008]).

The Court is also unpersuaded by Respondent's argument that the Second Notice is defective based upon service of the First Notice. During oral argument, Petitioner's counsel conceded that the First Notice served by Petitioner was insufficient, as it failed to give a termination date. Petitioner's counsel further represented that after he was retained by the Petitioner, a Second Notice was properly served upon the Respondent prior to commencing this summary proceeding. The Court notes that it is the Second Notice upon which Petitioner commenced the action. While Respondent correctly states that "the predicate notice cannot be amended, and that the landlord is 'bound by the notice served' " (Singh v. Ramirez, 20 Misc 3d 142(A) [App Term 2008]), it is clear that Petitioner was not seeking to amend the First Notice when it commenced this action. Instead, Petitioner served a completely new notice on April 27, 2022 and indicated that it was electing to terminate the tenancy, which would end on May 31, 2022. Respondent has failed to submit any authority requiring Petitioner to include language in the Second Notice indicating that the First Notice was being revoked.

Turning to Respondent's remaining arguments concerning the service of the two notices, the Court finds that such arguments are unavailing since Respondent failed to demonstrate how it was "materially misled or prejudiced" by such. The termination date given in the Second Notice was later than the 30-day time period provided for in the First Notice.

Furthermore, counsel for the Respondent argues that the Respondent was also misled because the First Notice and Second Notice were not translated into Spanish. The Court notes that the only case upon which Respondent relies for the position that a Spanish translation was required is Hughes v. Lenox Hill Hosp., 226 AD2d 4, 651 N.Y.S.2d 418 [1st Dept., 1996]. In this decision, the Appellate Division, First Department held that "[t]o the extent that notice is a material issue in this or similar matters, this Court takes the position that the appropriate standard for assessment of the adequacy of notice is one of reasonableness in view of all attendant circumstances." Respondent further avers that the circumstances in this matter dictate that a Spanish translation should have accompanied the Second Notice.

The Court finds that a translation of the Second Notice into Spanish was not required under the circumstances herein. First, Respondent is enjoined from raising the argument that the Second Notice should have been translated into Spanish in Respondent's reply papers without having first raised such issue in the papers submitted in support of the Notice of Motion. As the Appellate Division, Second Department has repeatedly held, "the function of reply papers is to address arguments made in opposition to the position taken by the movant, not to introduce new arguments or new grounds for the requested relief (see Matter of Allstate Ins. Co. v. Dawkins, 52 AD3d 826, 861 N.Y.S.2d 391)." (Castro v. Durban, 161 AD3d 939, 941 [2d Dept 2018]). Second, the "reasonableness" standard of Hughes has not been met here, as the Respondent has submitted insufficient evidence that demonstrate that the attendant circumstances require a Spanish translation. Forgoing the broader question of whether Hughes ever requires a predicate notice to be served to a tenant in a language other than English, the only evidence submitted in support of the assertion that the Petitioner should have translated the Second Notice into Spanish is the Reply Affidavit by Munoz. In such affidavit, Munoz states in paragraphs 17 and 18 that while the affiant is "conversant in English, [the affiant is] not fluent in English, and certainly not fluent in legal terminology as to real estate, lease, etc." and that Petitioner Janet Doherty "is fully aware that [the affiant is] not fluent in English as we have had conversations in the past ." The affidavit provides no further context as to how the "conversations" point to a language barrier, and the affidavit contradicts itself by stating both that the affiant is "conversant" in English and that conversations between the affiant and the Petitioner should have led the Petitioner to the conclusion that the affiant is not fluent in English.

Lastly, it should be noted that the Respondent's assertion that Munoz required a Spanish translation to review the Second Notice is contradicted by the Affidavits submitted by Munoz. While the Affidavit of Munoz dated September 27, 2022 contains the statement in paragraph 25 that "[t]his affidavit was translated to me into Spanish by a member of the staff at my counsel's office who is a Certified Translator and fluent in Spanish and English," the Affidavit dated August 22, 2022 contains no assertion that the Affidavit was translated into Spanish.

Based upon Respondent's failure to otherwise demonstrate that dismissal is a proper remedy, the Court hereby denies Respondent's motion in its entirety.

Petitioner's Motion

Pursuant to RPAPL § 232-a, a petitioner seeking to commence a holdover proceeding against a month-to-month tenant must serve such tenant with a thirty-day statutory termination notice. Furthermore, such notice must be served in accordance with RPAPL § 735. (See Arverne Ltd. Profit Hous. Corp. v Taft's Dental, P.C., 63 Misc 3d 984, 989 [Civ Ct 2019]). Based upon the papers submitted in connection with the Petition and Cross-Motion, the Court finds that Petitioner has demonstrated prima facie that it properly served the Respondent in accordance with RPAPL § 735. The Court further finds that Respondent has failed to demonstrate that an issue of fact exists.

Furthermore, the Court denies Petitioner's cross-motion for use and occupancy in the amount of $8,000.00 without prejudice and severs such claim. (See RPAPL § 745; CPLR § 407). As noted by the Appellate Division, Second Department in 255 Butler Associates, LLC v. 255 Butler, LLC, " 'the award of use and occupancy during the pendency of an action or proceeding 'accommodates the competing interests of the parties in affording necessary and fair protection to both' (MMB Assoc. v. Dayan, 169 AD2d 422, 422, 564 N.Y.S.2d 146, quoting Eli Haddad Corp. v. Redmond Studio, 102 AD2d 730, 731, 476 N.Y.S.2d 864)." (255 Butler Assoc., LLC v. 255 Butler, LLC, 173 AD3d 651, 653 [2d Dept 2019]. See 651 4th Ave LLC v Park Slope Auto Ctr., Inc., 70 Misc 3d 1206(A) [Sup Ct 2020] ("The award of use and occupancy during the pendency of an action or proceeding is meant to accommodate the competing interests of the parties in affording necessary and fair protection to both"). Therefore, Petitioner is granted leave to bring a separate plenary action with respect to such damages.

Accordingly, it is hereby

ORDERED that Respondent's motion is denied in its entirety; it is further

ORDERED that Petitioner's motion for a final judgment of possession is hereby granted; it is further

ORDERED that Petitioner's motion for a warrant of eviction is hereby granted, execution stayed until November 6, 2022; it is further

ORDERED that Petitioner's cross-motion for use and occupancy in the amount of

$8,000.00 is denied without prejudice; and it is

ORDERED that Petitioner is granted leave to bring a separate plenary action with respect to monetary damages sought in its cause of action for use and occupancy.

The foregoing constitutes the Decision and Order of the Court.

November 1, 2022

Staten Island, New York

Hon. Brendan T. Lantry, J.C.C.

Brendan T. Lantry, J.

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Docket No: Index No. LT-300968-22/RI

Decided: November 01, 2022

Court: Civil Court, City of New York.

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