90 William Street Development Group, LLC v. Oshman & Mirisola, LLP, et al.

(Civ. Ct. N.Y. Cty. 11/25/05)

We represented: Plaintiff/Landlord

Hon. Matthew F. Cooper, J.C.C.

DECISION and ORDER This is a commercial landlord-tenant holdover proceeding. Respondent moves to dismiss the petition on the grounds that petitioner failed to provide an adequate cure period; that the notices to cure and to terminate were not given to the proper tenant; and that the petition fails to adequately describe the premises. Petitioner opposes the motion and cross-moves for summary judgment.

Respondent's objection to the timeliness of the notice to cure is based solely on its contention that petitioner was required under ATM One LLC v. Landaverde, 2 NY3d 472 (2004), to add five days for mailing. Landaverde, however, cannot be read to apply to a commercial landlord-tenant proceeding like this where the lease is absolutely specific as to the service requirements for the notice to cure. Section17(A)(i) of the lease provides for five days notice. Section 27 provides that the notice is to be given by registered mail or certified mail (return receipt requested) and that the notice will be "deemed to have been …given on the date when it shall have been mailed." Section 27 concludes by stating: "This notice provision has been specifically negotiated between the parties hereto."

Unlike the regulatory notice requirements at issue in Landaverde, which the Court found to be ambiguous and vague, the applicable lease provisions here are clear beyond question: the tenant must be afforded at least five days to cure from the date of the mailing of the notice. Inasmuch as the notice specified a cure date of August 12, 2005, and was sent by certified mail (return receipt requested) on August 5, 2005, respondent received seven days to cure from the date of mailing. Thus, it was given more than the full cure period it bargained for when it agreed to the terms of Section 27 of the lease.

Respondent's contention that the notices to cure and terminate were not served on the correct party is also countered by the specific terms of the lease. Section 27 states that notices are to be addressed to "Oshman Helfenstein, Mirisola & Shwartz LLP." With the exception of a one-letter difference in spelling ("Schwartz" instead of "Shwartz"), this is precisely what was done. The fact that the firm may have gone from Oshman Helfenstein, Mirisola & Shwartz to Oshman, Helfenstein & Mirosola and finally to Oshman & Mirosola is of no consequence absent proof of an assignment of the lease. Section 12 of the lease requires the consent of the landlord in order for there to be an assignment. There is not even the suggestion that such consent was ever given or even sought.

Respondent's final contention is that the petition must be dismissed because it fails to adequately describe the premises. The lease describes the premises as "a portion of the Sixth Floor, the western potion (sic), in the building, as more particularly shown on Exhibit 1 annexed hereto and made part hereof." (Emphasis added.) Exhibit 1 to the lease is the floor plan for the premises. The petition uses some of the language from the lease to describe the premises ("a portion of the 6' floor, the western portion of the building.") The description in the petition, however, omits any reference to the floor plan. Moreover, the petition does not attach a copy of the floor plan, a plan which is annexed to the lease to "more particularly" describe the premises. Petitioner gives no explanation for failing to take the simple step of attaching the floor plan to the petition in order to describe the premises with the same particularity as the lease. All it does is make the blanket statement that "there is no statutory or common law requirement that a floor plan be attached" to a petition.

In determining the sufficiency of a description, in terms of notice to a tenant, "the appropriate test is one of reasonableness in view of the attendant circumstances." 190 Riverside Drive, LLC v. Nosei, 185 Misc 2d 696, 697 (App. Term, 1" Dept. 2000). In viewing the petition's description of the premises from the perspective of a standard of "reasonableness," the court finds that the description, even with its deficiencies, is nevertheless sufficient to have put respondent on notice of the proceeding against it. This is particularly so in light of petitioner's assertion that there are no tenants other than respondent on the western side of the 6th floor of the building.

The court is less certain, however, that the description as it now exists is specific enough, without additional information, to apprise the marshal of the exact location of the premises in the event an eviction ensues. See 272 Sherman, LLC v. Vasquez, 4 Misc 3d 370 (Civ Ct, New York County 2004). That specificity is best achieved, as with the lease, by including a copy of the floor plan with the petition.

A commercial petition can be amended "…in the absence of prejudice or surprise." B. W.H.N. V Associates v. Sun Lee Deli & Grocery, Inc., 194 Misc 2d 725, 726 (App Term, 1st Dept. 2003). As respondent is certainly aware that petitioner is seeking to evict it from the entire premises it occupies, it would be difficult for it to claim prejudice or surprise. Consequently, prompt amendment of the petition to include the floor plan is, under these circumstances, a more appropriate remedy than dismissal.

Petitioner's cross-motion for summary judgment must be denied. Respondent did not interpose an answer to the petition but instead made a pre-answer motion to dismiss. CPLR Rule 3212 provides that a party may move for summary judgment only after issue has been joined. Because respondent has yet to interpose an answer in the case (and will be required to do so only after it is served with an amended petition), issue has not been joined and petitioner's motion for summary judgment is therefore premature. It is also noted that the affidavit of Mario Procida, submitted in support of the motion, conflicts with the deed to the building that is attached as an exhibit to the motion. Mr. Procida refers to the deed as "evidencing ownership by Down East." The deed shows the owner to be 90 William Street Development Group, LLC. No explanation is given as to what "Down East" has to do with this proceeding or why Mr. Procida refers to it as the owner of the building.

For the foregoing reasons, respondent's motion to dismiss is granted solely to the extent of directing petitioner to serve an amended petition by December 9, 2005. In all other respects, the motion to dismiss is denied. Petitioner's cross-motion for summary judgment is denied. Respondent is to serve an answer to the amended petition by December 21, 2005. The parties are directed to appear for trial on January 3, 2006 at 9:30 a.m. in Part 52, Room 1166.

This constitutes the decision and order of the court. Copies are being mailed this day to counsel.