May 4, 2025

Below is a section of a memorandum of law that I recently drafted, where I was representing a commercial tenant in Supreme Court, Manhattan. If someone were to ask me the top three rules for representing a commercial landlord in the vitally important predicate notice stage of a litigation (these cases are won or lost in the predicate notice stage) I would say that the top three rules are: (1) Read the lease; (2) Read the lease; (3) Read the lease.

The Notice of Intention to End Lease Term was not served upon Tenant, thus the Lease was not terminated earlier than its scheduled expiration date, thus a cause of action for ejectment will not lie.

First, the Notice of Intention to End Lease Term was not dispatched in accordance with the Lease at § 11.01, which clearly states that a notice shall be “deemed to have been duly given only if sent by messenger or recognized overnight courier (requiring signed receipt).” The printout for the June Package states that it was shipped “signature not required”. Indeed, the printout for the June Package states further that no signature was received. (See Exhibit A to XXX Affidavit)

Moreover, there is a contrast between the printout for the February Package and the printout for June Package. The printout for the February Package says, “signature required”, making it all the more inexplicable why Plaintiff would fail to so indicate when dispatching the Notice of Intention to End Lease Term. Furthermore, even though Plaintiff knew it was shipping to a commercial address, Plaintiff indicated to FedEx that the June Package was destined for a residence.

Finally, the affidavit of service of the Notice of Intention to End Lease Term does not indicate that the June Package was dispatched with a signature requirement.

It has been held by the appellate courts that a requirement in a lease for an adverse-party to sign for a deal-altering document is enforceable, even if such lease clause puts the noticing-party in an untenable position. See Elk 33 East 33rd LLC v. Sticky’s Corporate LLC, 228 AD3d 455 [1st Dept 2024] (A tenant and a guarantor were liable to a landlord, where the lease required the landlord’s written acceptance of tenant’s surrender and landlord refused to provide such signature, even where the surrender was required and essential to limit guarantor liability through the date of surrender.)

Our inquiry need not go any further. Pursuant Lease § 11.01 a notice is not effective until it is BOTH dispatched with a signature requirement and signed for upon delivery (or rejected). The Notice of Intention to End Lease Term was neither dispatched with a signature requirement nor signed for or rejected.

Nevertheless, it is also worth mentioning that the Notice of Intention to End Lease Term was, according to the printout for the June Package, delivered on June 10, 2024. Yet the Notice of Intention to End Lease Term, which was supposed to be upon ten days’ notice, purportedly terminated the tenancy on June 18, 2024. Even had the Notice of Intention to End Lease Term been properly dispatched with a signature requirement and even if a signature had been obtained on the date of delivery, June 10, 2024, Plaintiff did not provide Tenant with the requisite ten days’ notice necessary pursuant to the Lease at § 12.01 to effectuate a termination.

There are no disputed issues of fact requiring a trial here. The Notice of Intention to End Lease Term was not served upon Tenant; thus the Lease was not terminated earlier than its scheduled expiration date, and the First Cause of Action for ejectment will not lie. Thus, Plaintiff’s First Cause of Action against Tenant for ejectment must be summarily dismissed.

Respectfully submitted,

Michelle Itkowitz