Wented Realty Corp. v. Hisako Oshima Watanabe

(Civ. Ct. N.Y. Cty. 9/7/00)

We represented: Petitioner

Carol H. Arber, J.H.C.

DECISION and ORDER Petitioner moves pursuant to CPLR Section 3212 for summary judgment granting: 1) a judgment of possession and warrant of eviction in favor of petitioner against respondents; 2) a money judgment in favor of petitioner against respondents at the rate of $6,750.00 per month for use and occupancy from July 1, 2000 to present; and 3) attorneys' fees in favor of petitioner. Respondents oppose the motion.

In 1991, petitioner and respondents entered into a 7-year lease agreement commencing July 1, 1993 through June 30, 2000. The lease stated that respondents had the option to renew the lease for an additional three-year term, provided that respondents gave written notice to petitioner of their intention to exercise the renewal option at least three months prior to the expiration of the lease. Petitioner now states that respondents did not properly exercise the renewal option since: 1) respondents notified petitioner on April 4, 2000, beyond the three-month deadline; and 2) respondents failed to provide written notice by registered or certified mail.

In opposition to the motion, respondents state that: 1) the lease does not require written notice by certified or registered mail; and 2) on April 1, 2000, respondents timely exercised the renewal option of the lease by personally delivering a letter to the Quality Hotel & Suites, which previously accepted respondents' rent checks.

A tenant who exercises the renewal option in a lease must do so in strict compliance with the terms of the lease. American Realty Co. v. 64 B Venture et al., 176 AD2d 226 (1991); JNA Realty Corp. v. Cross Bay Chelsea, Inc., 42 NY2d 226 (1977). In this case the lease states that respondents must exercise the renewal option at least three months prior to the expiration of the lease on June 30, 2000. Since respondents did not notify petitioner until April 1, 2000, which was beyond the three-month period, respondent failed to timely exercise the renewal option of the lease.

Furthermore, respondents failed to deliver the notice to petitioner by certified or registered mail. While respondents argue that the renewal option provision of the lease does not require service by certified or registered mail, paragraph 27 of the lease specifically states that "any notice by Tenant to Owner must be served by registered or certified mail." Contrary to the lease, respondents personally delivered the notice to petitioner; therefore, even if it had been timely, it was not properly exercised. Since the lease has since expired and respondents failed to demonstrate that it timely and properly exercised the renewal option, that aspect of petitioner's motion seeking a judgment of possession and warrant of eviction in favor of petitioner against respondents is granted.

Petitioner also states that according to the lease, it is entitled to a money judgment against respondents at the rate of $6,750.00 per month from July 1, 2000 until respondents vacate the premises. Since paragraph 53 of the lease clearly states that petitioner is entitled to use and occupancy at "a sum equal to three (3) times" the amount of respondent's monthly rent of $2,250.00 and respondents failed to oppose this aspect of petitioner's motion, petitioner is entitled to a money judgment in the amount of $20,250.00, representing use and occupancy from July, 2000 through September, 2000. The Clerk is directed to enter judgment in favor of petitioner against respondents for the amount stated herein.

Petitioner also moves for attorneys' fees. Pursuant to RPAPL Section 234 and paragraph 19 of the parties' lease agreement, petitioner is entitled to reasonable attorneys' fees. The parties shall appear for a hearing on the determination of attorneys' fees on September 28, 2000 at 2:30 pm at 80 Centre St., Rm. 103.

The foregoing constitutes the decision and order of the court.