LALLY v. FASANO LALLY (2008)

Appeal and cross appeal from a decision of the District Court of Nassau County, First District (Scott Fairgrieve, J.), dated November 1, 2007.   The decision, insofar as appealed from by petitioner Lawrence M. Lally, after a nonjury trial, permitted occupant Dawn Fasano-Lally to occupy the premises from November 1, 2007 through December 14, 2007 and directed petitioner to provide occupant with a key, in a licensee summary proceeding.   The decision, insofar as cross-appealed from by occupant, awarded possession to petitioner.   The cross appeal is deemed from the final judgment of the same court, entered November 20, 2007, awarding possession to petitioner (see CPLR 5520[c] ).

Appeal by petitioner Lawrence M. Lally dismissed as abandoned.

Final judgment reversed without costs and petition dismissed.

In June 2002, occupant Dawn Fasano-Lally's husband was given permission by his parents, petitioner Lawrence M. Lally and his wife, to occupy a beach house owned by petitioner and his wife.   Sometime thereafter, occupant and her husband became estranged, and occupant's husband vacated the house in January 2007.   In a letter dated August 24, 2007, petitioner asked occupant to move out of the beach house by September 8, 2007.   In response, occupant's attorney wrote to petitioner, requesting, inter alia, that petitioner “forward any further communications to [counsel's] attention and do not serve any other documents on my client directly.”   Notwithstanding counsel's letter, petitioner caused a 10-day notice to quit to be posted at the premises on September 8, 2007, following no previous attempts at service, and to be mailed, by first-class mail only, the next day.   Petitioner also caused the 10-day notice to be faxed to occupant's counsel on September 12, 2007.   Thereafter, petitioner commenced this licensee proceeding (RPAPL 713[7] ) by verified petition dated September 21, 2007.

The conspicuous-place service of the 10-day notice to quit was defective.   RPAPL 713 requires that the 10-day notice be “served upon the respondent in the manner prescribed in section 735.”  RPAPL 735(1) permits resort to conspicuous-place service only “if upon reasonable application ․ admittance cannot be obtained.”   In the instant matter, petitioner failed to make a “reasonable application” to gain admittance before resorting to conspicuous-place service (see Eight Assoc. v. Hynes, 102 A.D.2d 746, 476 N.Y.S.2d 881 [1984], affd. 65 N.Y.2d 739, 492 N.Y.S.2d 15, 481 N.E.2d 555 [1985] ).   In addition, while the 10-day notice was mailed to occupant by first-class mail, petitioner failed to also mail the notice by registered or certified mail, as required by RPAPL 735(1).

With respect to the fax service on September 12, 2007 of the 10-day notice upon occupant's attorney, we note that, even assuming that such service was effective (compare Four Star Holding Co. v. Alex Furs, 153 Misc.2d 447, 590 N.Y.S.2d 667 [App. Term, 1st Dept. 1992] with e.g. 96-18 43rd Ave. Corp. v. IBT Indus., Ltd., N.Y.L.J., May 28, 1991 [App. Term, 2d & 11th Jud. Dists.];   Besdine Mgt. Co. v. Sheldon, N.Y.L.J., May 7, 1990 [App. Term, 1st Dept.],) the petition, which was dated, and verified on, September 21, 2007, only nine days after the fax service, was defective, given that a petition pursuant to RPAPL 713 must allege, where service of a 10-day notice to quit is required, that the respondent remained in occupancy after the expiration of the 10-day period (see 3 Dolan, Rasch's Landlord and Tenant-Summary Proceedings § 41:35, Forms 92, 94, 95, at 59-64 [4th ed.];   see also Radlog Realty Corp. v. Geiger, 254 App.Div. 352, 354, 5 N.Y.S.2d 82 [1938];  Smith v. Huestis, Hill & Denio 236 [1843] ).

In view of the foregoing, the final judgment must be reversed and the petition dismissed (Community Health Plan of Suffolk v. Cooley, 129 Misc.2d 844, 494 N.Y.S.2d 612 [1985] ).   We reach no other issue.

TANENBAUM and MOLIA, JJ., concur. McCABE, J.P., taking no part.