3170 Atl. Ave Corpv.Jereis

Civil Court, City of New York, Kings County.Feb 6, 2013
38 Misc. 3d 1222 (N.Y. Civ. Ct. 2013)
38 Misc. 3d 1222969 N.Y.S.2d 8062013 N.Y. Slip Op. 50235

No. 75334–KLT–2011.

2013-02-6

3170 ATLANTIC AVE CORP a/k/a/ Atlantic Ave. Corp., Petitioner, v. Zehy JEREIS, Joseph Ratner, Atlantic Gas and Wash LLC., Respondents.

Sanford Strenger, Esq., Salamon, Gruber, Blaymore & Strenger, P.C ., Roslyn Heights, for Petitioner. Meryl L. Wenig, Esq., Wenig Saltiel & Johnson LLP, Brooklyn, for Respondents.


Sanford Strenger, Esq., Salamon, Gruber, Blaymore & Strenger, P.C ., Roslyn Heights, for Petitioner. Meryl L. Wenig, Esq., Wenig Saltiel & Johnson LLP, Brooklyn, for Respondents.
KATHERINE A. LEVINE, J.


In a case of apparent first impression, the Court is asked to determine whether a non-payment petition, brought pursuant to RPAPL § 741, must be dismissed when the petition is dated and verified two days before the Five Day Notice for Rent Due (“Five Day Notice”) has expired but is served and filed after the expiration of the Five Day Notice. For the reasons set forth below, the motion to dismiss the petition is denied.

It is not contested that the petition was dated, sworn to by an attorney, and verified on June 3, 2011, and that the notice of petition and petition were filed on June 8, 2011, and served upon respondent Joseph Ratner (“Ratner”) on June 14, 2011. Nor is it contested that the Five Day Notice was mailed by regular and certified mail to Ratner on May 31, 2012.

Respondents Zehy Jereis, Joseph Ratner and Atlantic Gas and Wash LLC (“respondents”) move to dismiss the petition because it was dated and verified prematurely and prior to the expiration of the Five Day Notice that was served upon Ratner. They contend that RPAPL § 711 mandates that the Five Day Notice expire before the landlord can file a petition in court claiming that he has not been paid. While not accusing petitioner's attorney of perjury per se, they claim that the petition and verification are false since petitioner asserted that Ratner was in default of his obligation to pay rent when in fact, as of June 3, 2011 Ratner still had two more days to cure the past due amount. Therefore, a condition precedent to the commencement of the action was not met, the petition cannot be cured, and it is therefore a nullity.

Although all motion seeks dismissal of the petition against all the respondents since the petition was allegedly defective per se since it contained a false allegation, this decision will only address whether the motion should be granted as against Ratner



Respondents distinguish a premature verification or pleading, where an attorney signed a petition averring to facts which have not yet occurred, from a verification that is defective but amendable, such as a verification that contains a scrivener error; i.e. where an attorney signed the petition on the correct date but mistakenly notarized it on the wrong date. Respondents contend that while a court has the discretion, pursuant to CPLR §§ 3025 and 3026, to amend an omission or irregularity in a pleading, the court cannot change the substance of the pleading. Therefore, respondents assert that the “due diligence” requirement of notifying the other side that a pleading is a nullity pursuant to CPLR 3022 does not apply herein because this matter does not involve an unverified or defective verification. Alternatively, respondents claim that they exercised due diligence in making this motion because they did not know that the petition was premature as of June 3, 2011 until the process server commenced her testimony in November 2011. Prior to that time, they were only aware that Ratner had been served with the Five Day Notice on May 11, 2011 as averred in the petition.

Petitioner 3170 Atlantic Ave. Corp. a/k/a/ Atlantic Ave Corp. (“petitioner') opposes the motion, contending that the petition was actually filed and served at least three days after the Five Day Notice had expired and therefore is not defective. It points out that respondents failed to cite any statute or case law to support their contention that the petition is premature or false because it predated the expiration of the Five Day Notice. Petitioner emphasize that the petition does not even refer to the Five Day Notice, but rather asserts that respondents have defaulted in payments of rent for in the sum of $243,709.20 and that rent had been demanded “since the same became due and by written notice dated May 11, 2011,” way before the date of the petition and verification. Petitioner therefore deems respondent's premise that the petition is false because it avers that respondents were in default to be “ridiculous.” Respondents in fact had been in default for a long period of time preceding the Five Day Notice by virtue of the respondents' failure to pay the cumulative sum of $243,000. Finally, petitioner argued that respondents waived any right to seek dismissal based upon the alleged premature verification since they did not exercise due diligence in notifying petitioner that they deemed the petition to be a nullity.

During the traverse held on January 23 and February 9, 2012, the process server, Lucille Galtieri (“Galtieri”), testified and submitted a copy of postal receipts indicating that the Five Day Notice was served upon Ratner by both regular and certified mail on May 31, 2011 (2/09/12 at p. 21 et seq., petitioner's Exhibit 4A). The evidence thus confirms respondents contention that they only learned about the May 31st service at the traverse hearing. Galtieri testified that although she had personally served Ratner on May 27th, her log book indicated that she had posted the Five Day Notice on the white storm door with glass (Pet. 2 B). She explained the discrepancy as follows: “posting is when no one answers the door, you can't ever get a hold of the person. That wasn't the case here. The person was definitely there, so it was considered personal.”

Petitioner explained that it reserved the Five Day Notice in late May after respondents challenged the legality of the May 11th Notice, which was only served by mail and not personally.



Respondents argued that under RPAPL § 735, “conspicuous service” is only completed on the mailing by certified or regular mail, which was done on May 31st, and that petitioner therefore could not rely upon service on May 27th to obviate the argument that the petition was premature. Respondent argues that Ratner's time to cure therefore expired on June 5th at 11:59 pm, two days after the petition was dated and verified, and that the petition was therefore prematurely dated and verified.

Whether the Pleading Was Defectively Verified.

RPAPL § 741 requires that petitions be verified in summary proceedings. However, CPLR § 3022 provides a remedy for a defective verification. The adverse party upon whom a defective verification is served may treat it as an unverified pleading and “as a nullity, provided he gives notice with due diligence” upon the attorney of the adverse party. This jurisdictional defect is waived unless the adverse party exercises due diligence in giving notice. CPLR § 3022; Mtr. Of Miller v. Bd. Of Assessors, 91 N.Y.2d 82, 666 N.Y.S.2d 1012, 689 N.E.2d 906, (1997); Mtr of Morse v. Brozzo, 94 A.D.3d 1184, 942 N.Y.S.2d 246 (3rd Dept 2012); Mtr of William Morse v. Francis Brozzo, 94 A.D.3d 1184, 942 N.Y.S.2d 246 (App. Term, 3rd Dept April 5, 2012); SLG Graybar, LLC v. Hannaway Law Offices, 182 Misc.2d 217, 219, 696 N.Y.S.2d 645 (Civil Ct., N.Y. Co.1999). It is clear that the waiver provision applies to proceedings commenced pursuant to RPAPL § 741; SLG Graybar, supra., 182 Misc.2d at 120, 695 N.Y.S.2d 906.

Although the Court of Appeals has declined to identify the period of time in which “due diligence” must be exercised, Mtr of Miller, supra, 91 N.Y.2d at 86, 666 N.Y.S.2d 1012, 689 N.E.2d 906, some lower courts have held that a notice that the petition will be treated as a nullity must be given within 24 hours. Lentlie v. Egan, 94 A.D.2d 839, 840, 463 N.Y.S.2d 542 (3d Dept 1983); O'Neil v. Kasler, 53 A.D.2d 310, 385 N.Y.S.2d 684 (4th Dept.1977); Jewel of Asia, Inc. v. Unique Affairs, 2007 N.Y. Slip Op 52490(U), 18 Misc.3d 1110(A) (Justice Ct., Town of Ossining 2007). Other courts have made the determination based on the circumstances of the case. See e.g. Theodoridis v. American Transit Ins. Co., 210 A.D.2d 397, 397, 620 N.Y.S.2d 984 (2d Dept 1994); Price v. State of NY, 2003 N.Y. Slip Op 51086(U), 2003 N.Y. Misc. LEXIS 893 (Court of Claims, 2003).

A party moving to dismiss a petition based upon a defective verification must thus offer proof that the defect is jurisdictional and not ministerial or minor, and that it has not waived its right by failing to give notice with due diligence. Mtr. Of Nafalski v. Tola, 63 A.D.2d 1039, 406 N.Y.S.2d 140 (3rd Dept.1978); SLG Graybar supra. At 120–21. In Graybar, supra, the court first found it was “well settled” that the failure to verify or properly verify a petition did not deprive a court of subject matter jurisdiction Id at 221, 695 N.Y.S.2d 906. It also found that the courts should disregard minor defects and permit the parties to correct deviations from the prescribed verification form since “[i]rregularities in the verification will rarely result in prejudice to a party or affect the substance of the litigation.” Id. See also, Jewel of Asia, Inc. v. Unique Affairs at Mansion Hill Corp., 18 Misc.3d 1110(A) (Just.Ct.2007).

Here, the verification was not defective since it was not prematurely verified, as argued by respondents, but rather was verified on the same date that the petition was sworn to by an attorney in the office representing petitioner. Therefore, this Court is not divested of jurisdiction because the petition was verified two days prior to the expiration of the Five Day Notice. In light of this ruling, the Court need not even address whether CPLR § 3022 applies to the instant motion.

The Petition Does Not Contain False Allegations and Will Not be Dismissed.

Although respondents do not allege that the petition is legally insufficient because it fails to specifically recite the Five Day Notice that was mailed on May 31st, they argue that it contains false information since it “averred that the Respondents had already defaulted when the time to cure had not elapsed!” (Motion, Para.29). The petition, and rent statements sent to all the respondents, avers that pursuant to the lease, respondents owed the landlord rent in the sum of $243,709.20, that respondents have defaulted in the payments, and that rent had been demanded “since the same became due and by written notice dated May 11, 2011.”

Respondents' argument incorrectly conflates a tenant's default in paying rent with the statutory written notice that must be served upon a tenant, pursuant to RPAPL § 711, before a petition can be commenced. Respondents mischaracterize the statutory notice as the predicate for a tenant to be deemed to be in default, so that there can be no default until the time period in which to cure under the rent demand notice has expired.

However, this argument is negated by the very purpose of a notice to cure, which is “to specifically apprise the tenant of claimed defaults in its obligations under the lease and of the forfeiture and termination of the lease if the claimed default is not cured within a set period of time.” ShopRite Supermarkets, Inc. v. Yonkers Plaza Shopping, LLC, 29 A.D.3d 564, 566, 817 N.Y.S.2d 291 (2nd Dept., 2006) (quoting Filmtrucks, Inc. v. Express Indus. & Terminal Corp, 127 A.D.2d 509, 510, 511 N.Y.S.2d 862 (N.Y.App. Div., 1st Dept., 1987). Thus, RPAPL § 711's rent demand requirement is not meant to create a new date by which tenant will be in default, but rather to afford a tenant an opportunity to avoid litigation by remedying any default by paying the amount due. Passarelli Family P'ship, L.P. v. Davis, 32 Misc.3d 1226(A) (Civ.Ct., Richmond Cty., 2011); Jendor Industries v. Harvest Year Seafood, 187 Misc.2d 293, 721 N.Y.S.2d 898. 295 (Civil Ct., N.Y. Co.2000). It permits a tenant to avoid forfeiture by informing him of the approximate good-faith amount of rent claimed and the particular period for which he allegedly is in default.” Zenila Ralty Corp. v. Masterandrean 123 Misc.2d 1, 7, 472 N.Y.S.2d 980 (Civil Ct., N.Y. Co.1984). The demand for rent is made after a tenant has defaulted in payment of rent but before a proceeding is brought. Id. Citing Meyers v. Knights of Pythias Bronx Temple Assn., 194 App.Div. 405, 185 N.Y.S. 436; See, Zenila Ralty Corp. v. Masterandrean 123 Misc.2d 1, 7, 472 N.Y.S.2d 980 (Civil Ct., N.Y. Co.1984).

Respondents do not allege that there is a deficiency in the substance of the petition in that it fails to comply with the requirements of RPAPL § 741. Since the petition does not contain any false allegation, the Court refuses to dismiss the petition on that ground pursuant to CPLR § 3211.

Respondent also argue that the petition is defective on its face because the Five Days Notice requires the petitioner to “wait the entire five day period from the date of service, excluding the day of reckoning, in order to proceed with any judicial proceeding.” (Motion, ¶ 22). Respondents conclude that since the petition was dated two days prior to the expiration of the Five Day Notice served upon Ratner, it must be dismissed as a matter of law.

Respondent's argument fails because commencement of the proceeding does not hinge upon the date of verification or the date the petition was sworn to, but rather upon the date when service of the notice of petition and petition is completed. See 528 E. 11th St. H.D.F.C. v. Durieaux, 164 Misc.2d 595, 597, 625 N.Y.S.2d 431 (Civ.Ct., N.Y. County, 1995) (“When service of the notice of petition and petition is made other than by personal delivery to respondent, it is not complete until the filing of proof of service”) See, Collado v. Boklari, 27 Misc.3d 161, 169, 892 N.Y.S.2d 731 (Dist. Ct., Suffolk Co.2009).

By analogy, in considering whether a CPLR Article 78 proceeding was brought prematurely because the petitioner had not waited for 30 days to elapse after serving the requisite notice of claim, the court looked to the date of service of the article 78 proceeding. Mtr. Of Sheil v. Melucci, 94 A.D.3d 766, 941 N.Y.S.2d 265 (2d Dept 2012). See, also, Mulligan v. County of Westchester, 272 A.D1023 (2d Dept.1947) (complaint served prior to expiration of three months after service of notice of claim must be dismissed). In Batavia Enterprises Inc. v. Assessor of Town of Batavia, 72 A.D.2d 912, 422 N.Y.S.2d 191 (4th Dept.1979) the court found that although a notice made pursuant RPAPL § 714 was defective in providing for a premature return date less than the required 20 days minimum, it did not divest the court of jurisdiction since the petition and notice were timely served. The court noted that the defect was “at most an irregularity resulting through inadvertence on the part of petitioner's attorney in asserting a premature return date.” Id.

Here petitioner did not commence the judicial proceeding until service of the notice of petition and petition were completed on June 9, 2011, four days after service of the Five Day Notice had expired. As such, the petition was timely commenced.

The Court also notes that Ratner was not prejudiced by the seemingly premature date on the petition since he was not served with the petition until after the Five Day Notice had expired. The “modern trend” has treated summary proceedings more akin to plenary actions so that in the proper situation technical defects contained in a petition may be amended. Chatham Green Management Corp. v. AAFE Management Co., 2003 N.Y. Slip Op 51298(U), 2003 N.Y. Misc. Lexis 1240, 2003 WL 22299083 (Civil Ct., N.Y. Co.2003). For example, a statement in the petition referring to a 30 day written notice, when in reality the notice was for three days as provided in the lease, did not constitute a defect which would divest the court of jurisdiction since the actual notice was annexed to the petition and the tenant would not be prejudiced in any way. Kennedy v. Deigan, 90 Misc.2d 238, 394 N.Y.S.2d 134 (Sup Ct. Nassau Cty, 1977). See, Jendor Industries v. Harvest Year Seafood Restaurant, Inc., 187 Misc.2d 293, 721 N.Y.S.2d 898 (Civil Ct., N.Y. Co.2000).

For all of the foregoing reasons, the motion to dismiss is denied and the traverse and hearing will continue. The foregoing constitutes the Decision and Order of the Court.