3 East 54th Street New York, LLC v. Petry Media Corp.

(Civil Court, NY County, 1/30/09)

We represented: Plaintiff 3 East 54th Street LLC

Justice Manuel J. Mendez, J.C.C.

DECISION and ORDER

Upon the foregoing cited papers, the Decision/Order on this motion is as follows:

The respondents, PETRIE MEDIA CORP., PETRY TELEVISION INC. and BLAIR TELEVISION INC. (hereinafter referred to as “the respondents”), seek an Order dismissing the holdover petition pursuant to CPLR §3211 in lieu of an answer based on the petitioner’s failure to serve a predicate 30 day notice of termination as required pursuant to Real Property Law § 232-c. Respondents claim because they have remained in possession of the premises subsequent to the termination of the lease on November 3, 2008, and the petitioner accepted rent subsequent to the termination, they are “month to month” tenants pursuant to Article 24.02 the lease, therefore, absent a 30 day notice of termination, they cannot be removed from the premises.1

The petitioner claims the notice of termination2 dated October 20, 2008, indicates November 3, 2008 was the effective date of termination. The respondents paid the rent by check deposited on October 31, 2008, prior to termination of the lease.3 Pursuant to the opposition papers the post-termination acceptance of rent did not take place, instead there was a verbal agreement to waive the termination of the lease. The reliance on Real Property Law § 232-c, according to the petitioner is misplaced because the tenant is only afforded protection under that statutory provision when the lease has expired not under circumstances involving termination.

LEGAL ANALYSIS:

A motion seeking to dismiss pursuant to CPLR § 3211, allows the court to accept the allegations found in the petition as true and consider affidavits submitted by the petitioner as a means of defining or correcting discrepancies in the petition, granting the petitioner favorable inferences in determining whether the facts alleged, “fit within a cognizable legal theory.”Four Cees Jewelry, Inc. v. 1537 Realty L.L.C., 11 Misc. 3d 1056(A), 815 N.Y.S. 2d 494 [NY Sup. Ct.,2005]. The respondent herein would have to establish that facts alleged in the petition are conclusory, do not actually create a cause of action, and there is no significant dispute as to whether the alleged facts are true. Only under those circumstances could the motion be granted. Rovello v. Orofino, 40 N.Y.2d 633,57 N.E. 2d 970,389 N.Y.S. 2d 314 [1976] and Leon v. Martinez, 84 N.Y.2d 83,638 N.E. 2d 511,614 N.Y.S. 2d 972 [1994].

The respondents claim that the holdover petition should be dismissed because the lease was terminated as of November 3, 2008. The respondents also claim because petitioner accepted rent after the termination of the lease they became month to month tenants. As month to month tenants the respondents claim they were supposed to be served with a thirty day notice of termination and the petitioner failed to do so, therefore the proceeding should be dismissed. The respondents are required to prove these claims and establish that there is no issue of fact.

In those instances where the terms of the contract are unambiguous, the contract must be enforced by its terms. This principle applies to commercial real property transactions where, “the instrument was negotiated between sophisticated, counseled business people negotiating at arms length.” Rocar Realty Northeast, Inc. v. Jefferson Valley Mall Limited Partnership, 38 A.D. 3d 744, 833 N.Y.S. 2d 522 [N.Y.A.D. 2nd Dept., 2007] citing to Reiss v. Financial Performance Corp., 97 N.Y.2d 195, 738 N.Y.S.2d658, 764 N.B. 2d 958 (2001); W. W. W. Assoc.v. Giancontieri, 77 N.Y. 2d 157, 565 N.Y.S. 2d 440,566 N.E. 2d 639; ‘Vermont Teddy Bear Co. v. 538 Madison Realty Co., 1 N.Y. 3d 470, 775 N.Y.S. 2d 765, 807 N.E.2d 876 (2004) and Matter of Wallace v. 600 Partners Co., 86 N.Y.2d 543, 634 N.Y.S. 2d 669,658 N.B. 2d 715. The same rules of construction applicable to contracts generally apply in the interpretation of leases. George Backer Management Corp., v. Acme Quilting Co., Inc., 46 N.Y. 2d 211,413 N.Y.S. 2d 135, 385 N.B. 2d 1062; State v. Robin Operating Corp., 3 A.D. 3d 757, 773 N.Y.S. 2d 131. The courts may not by construction attempt to add or remove terms or distort the meaning of those used by the parties so that it would result in a new contract “under the guise of interpreting the writing.” Vermont Teddy Bear Co. v. 538 Madison Realty Co., 1 N.Y. 3d 470, supra, citing to, Reiss v. Financial Performance Corp., 97 N.Y.2d 195, supra at 199.

The lease between the parties in this action at paragraph 25.02(a), states,

“(a) whenever Tenant shall default in the payment of any installment of fixed rent, or in the payment of any additional rent or any other charge payable by Tenant to Landlord, on any day upon which the same ought to be paid, and such default shall continue for ten (10) days after written notice without full payment by Tenant,
……Landlord may give to tenant a notice of intention to end the term of this Lease at the expiration often (10) days from the date of service of such notice of intention, and upon the expiration of said ten (10) days this Lease and the term and estate hereby granted, whether or not the term shall heretofore have commenced, shall terminate with the same effect as if that day were the Expiration Date, but Tenant shall remain liable for damages as provided in Article 27.”

The petitioner claims the rent payment was made and deposited subsequent to the notice to cure but before the actual termination date of November 3, 2008.4 Pursuant to the affidavit of Charles S. Cohen, president of the petitioner, as a result of the acceptance of payment it waived termination, therefore, the notice of termination in this proceeding dated, December 22, 2008, is valid. The lease at paragraph 25.02, indicates that the lease is terminated as of the expiration often days after service of the “notice of intention” (to terminate). The respondents paid rent and it was accepted prior to the termination date of the lease.

CONCLUSION:

The parties to this summary holdover proceeding dispute whether the lease pursuant to its terms expired on November 3,2008, creating a “month to month” tenancy because respondents remained in possession of the premises. The parties are disputing whether a 30 day notice of termination pursuant to Real Property Law 232-c, was required prior to service of the petition based upon the petitioner accepting rent. The respondents claim that they are month to month tenants pursuant to paragraph 24.02 of the lease, which provides that “in the event of expiration or termination of the term of the lease,” the landlord may “elect to construe such holding over as a tenancy from month to month.” Respondents claim that Real Property Law § 232-c applies and therefore a thirty day termination notice needed to be served prior to the commencement of this proceeding. This Court finds that pursuant to paragraph 25.02 of the lease, the acceptance of rent by the petitioner before the termination date of November 3,2008, resulted in the lease remaining in effect. The respondent was not a month to month tenant and the notice in this proceeding was proper.

Accordingly, the respondent’s motion is denied. The respondents, Petrie Media Corp., Petry Television Inc. and Blair Television Inc., will have twenty (20) days from the date of entry of this Decision and Order to serve and file any answer with the Clerk of this Court.

This constitutes the decision and order of this Court.

Dated: January 30, 2009

1 A copy of the lease agreement is annexed to the motion papers as “Exhibit A.”

2 A copy of the notice of termination dated October 20, 2008 is annexed to the motion papers as “Exhibit B.”

3 A copy of the rent check and proof of deposit is annexed to the opposition papers as “Exhibit I.”

4 A copy of the notice to cure dated October 3, 2008 and notice of termination dated October 20, 2008 is annexed to the motion papers as “Exhibit B, and a copy of the respondent’s check and the deposit slip are annexed to the opposition papers as Exhibit I.”