Opinion
SP 0057/04.
Decided March 29, 2004.
Jeffrey Seigel, Esq., attorney for respondents; Valerie A. Hawkins, Esq., attorney for petitioner.
The petitioner/landlord [hereinafter "landlord"] commenced this holdover proceeding to recover possession of the premises located at 41 Maple Street, Freeport, New York 11520. The landlord also seeks the issuance of a warrant of eviction, use and occupancy in the sum of $850.00 dollars including accrued interest from December 1, 2003, plus costs and disbursements of this action. The respondents/tenants [hereinafter "tenants"] move for an order dismissing the petition and notice of petition pursuant to CPLR 3211(a)(1), a defense founded upon documentary evidence, CPLR 3211(a)(2), a lack of subject of matter jurisdiction and pursuant to RPAPL § 232(b).
It is uncontroverted that the tenants entered into a month to month tenancy beginning on or about May 30, 2003. On October 9, 2003, the landlord served a thirty (30) day termination notice on the tenants via regular mail which sought to terminate the tenancy effective November 30, 2003.
The tenants contend that the thirty (30) day termination notice is ineffective to terminate the tenancy because the termination notice is defective in several respects. The tenants first contend that the termination notice fails to contain a signature by the landlord or by the landlord's authorized agent. Second, the tenants further contend that even though the unsigned termination notice was sent with a cover letter from the landlord's attorney, said cover letter does not cure any defect in the unsigned termination notice, because there was insufficient proof that the attorney was the authorized agent of the landlord.
The thirty (30) day termination notice contains the words "Yours, Etc.," typewritten at the bottom of the notice. A signature line with the typed written words "Owner/Landlord" appears underneath the signature line. The signature is left blank and no other signature of either the landlord or her attorney appears on the notice.
The landlord, in opposition to the tenants' motion, contends that there is no requirement that a termination notice be signed by the landlord or her attorney in order to effectively terminate the tenants' tenancy. Notwithstanding the fact that a signature is not required, the landlord further contends that the termination notice properly terminated the tenancy because the cover letter sent with the termination notice announced to the tenants that the landlord's attorney was authorized to act on behalf of the landlord.
LEGAL ANALYSIS
In the instant case, the property at issue is located in Nassau County and the term of the tenancy is month to month. To terminate such a tenancy, the landlord must comply with the notice set forth in Real Property Law § 232(b). That statute provides that:
"A monthly tenancy or tenancy from month to month of any lands or buildings located outside of the city of New York may be terminated by the landlord or the tenant upon his notifying the other at least one month before the expiration of the term of his election to terminate; provided, however, that no notification shall be necessary to terminate a tenancy for a definite term".
"There is no prescribed form to terminate a tenancy from month to month outside the City of New York" ( Industrial Funding Corp., Megna, 87 Misc 2d 443, 384 NYS2d 955 [Civ Ct, NY County 1976]). "[T]he notice can be oral or written, and may be served personally or otherwise, all that is required is that the notice be timely, definite and unequivocal; however, written notice and personal service are advisable" ( McGloine v. Dominy, 233 NYS2d 161 [Civ Ct, NY County 1962]).
In the present case, a thirty (30) day termination notice was mailed to the tenants on October 9, 2003, along with a cover letter from the landlord's attorney. The letter was written on the attorney's letterhead [Valerie A. Hawkins, Esq.] and stated in relevant part:
"Please be advised that this office represents Ms. Betseva Dell, your landlord . . . [M]s. Dell has directed this office to inform you that you must surrender your tenancy at 41 Maple Street, Freeport, New York 11520, on or before November 30, 2003 as per the attached notice . . . [I]f you have any questions regarding this matter, please do not hesitate to contact this office . . .".
The letter contained the handwritten signature of Valerie Hawkins and also contained the notation "cc: Ms. Beteseva Dell (w/encl.)" [the landlord].
There is no proof that petitioner's attorney had prior dealings with the respondent to put respondent on notice that the attorney had authority to act for the landlord petitioner. The facts demonstrate that petitioner's attorney sent the 30 day notice without any written authorization from the landlord showing that the attorney had authority to act for the landlord. Thus, if there were no other facts presented, respondents would be correct that the 30 day notice sent by the landlord petitioner's attorney would be defective because of the lack of written authorization from the landlord to act on the landlord's behalf and/or the lack of prior dealings between the attorney and the respondents.
In Reeder v. Sayre, 70 NY 180), the Court stated that the purpose of requiring evidence of the agent's authority to accompany the notice of termination is to permit the tenant to know "with safety" that the notice emanates from a person with the requisite authority so that the tenant may act thereon without the peril of being subject to claims from the owner.
In support of the tenants' motion, the tenants rely on Siegel v. Kentucky Fried Chicken of Long Island, Inc., 108 AD2D 218, 488 NYS2d 744 [2nd Dept 1985], affd. 67 NY2D 792, 501 NYS2d 317 where the notice of termination was signed by a person claiming to be the owner's attorney. The underlying lease, however, named a different attorney as the owner's agent. Further, the tenant had no prior dealings with or knowledge of the attorney who signed the notice. The Court held that a notice of termination signed by an agent or attorney who is not named in the lease and which is not authenticated or accompanied by proof of the latter's authority to bind the landlord is legally insufficient to terminate the tenancy.
The opposite result was reached in 54-55 Street Co. v. Torres, 171 Misc 2d 237, 656 NYS2d 591 [App Term 1st Dept 1997], where the tenants had been billed by the managing agent for three months preceding the notice of default which the agent signed without any accompanying evidence of his authority. The Court distinguished these facts from Siegel, stating that, based on the existing relationship between the tenants and the managing agent, there could be no doubt about the managing agent's authority to bind the landlord. Hence, the notice of default signed by the managing agent was found to be legally sufficient.
Similarly, in Barstow Road Owners, Inc. v. Billing, 179 Misc 2d 958, 687 NYS2d 845 [Nassau Dist Ct 1998], the District Court of Nassau County found that the tenants clearly had knowledge that the managing agent who signed the ten (10) day notice was the managing agent for the landlord. The evidence indicated that the tenants had repeated dealings with the agent over several years and paid their fees to that agent. Thus, the Court found the notice to be sufficient.
This rule was expanded even further in White Angel Realty v. Asian Bros. Corp., 183 Misc 2d 674, 706 NYS2d 583 [Nassau Dist Ct 2000]. In determining the sufficiency of a notice of termination, the Court held that it may look beyond the four corners of the termination notice to determine whether the appropriate legal requirements have been met. The Court noted that the landlord is permitted to demonstrate not merely that the agent was authorized in a writing which accompanied the notice, or that the agent was named in the lease, but that previous dealings between the tenant and the agent can be used to establish the tenant's knowledge of and acquiescence in the agency. The Court further stated that the purpose of the holding in Siegel is to provide tenants with assurance that notices purported to come from the landlord are in fact so authorized. Whenever such assurance can be demonstrated to exist, either by documentation or actual occurrences, the statutory requirements have been satisfied.
Most recently in Brooks Drug, Inc. v. 279 Sunrise Highway, Inc., 2002 NY Slip Op 50330(u), the District Court of Nassau County held that although a notice of default sent from the sublandlord's attorney did not satisfy the lease notice provision which required notice from the sublandlord personally, the subtenants were equitably estopped from asserting a lack of notice. The Court reasoned that the subtenants after being served with the default notice contacted the sublandlord's attorney on several occasions to negotiate an extension on which they could remain on the premises. Based upon these ongoing communications, the Court further reasoned that the subtenants were estopped from claiming that they did not know that the sublandlord's attorney had the authority to act for the sublandlord.
Similarly, in the instant case, it is undisputed that the tenants contacted the landlord's attorney, Valerie Hawkins Esq., upon receipt of the thirty (30) day termination notice. Several telephone conversations took place with Valerie Hawkins in which the tenants sought to extend the period in which they could remain in the premises until the end of January 2004. Additionally, the parties negotiated that use and occupancy would be paid to the landlord during this period. Based upon this ongoing relationship and in conformity with the holding of Brooks Drug, Inc, 2002 NY Slip Op 50330(u), supra, the Court finds that the tenants are equitably estopped from claiming that they did not know that the landlord's attorney was the authorized agent of the landlord or that she had the authority to bind the landlord.
Accordingly the Court holds that the thirty (30) day notice of termination is valid.
The respondents' motion is denied in all respects. All parties are to appear for trial at the First District Court (Landlord/Tenant Part — Civil 2), 99 Main Street, Hempstead, New York on the 8th day of April, 2004 at 9:30 a.m.
So ordered.