Email Service | Unconscionable Contract | Nonpaying Holdover

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Email Service, At Times

New York’s Civil Practice Law and Rules (“CPLR”) provides specific means by which a litigant must effectuate service in the commencement of an action. However, like any set of rules, exceptions can usually be made depending on the circumstances. A perfect example is in Safadjou v. Mohammadi, where the Fourth Department allowed a litigant to serve the summons with notice in a matrimonial action by email, rather than the traditional methods set forth in the CPLR.

There, the “[p]laintiff submitted evidence that defendant left the United States with the parties’ child and declared her intention to remain in Iran with her family.” Plaintiff’s attempts at (i) personal service upon defendant in Iran, (ii) service on defendant’s parents in Iran, and (iii) mail service on defendant at her parent’s address in Iran, all proved futile. These attempts, along with the unique circumstances, convinced the court that “an alternative method of service of process” was necessary, because the traditional methods were “impracticable.”

The record reflects that the parties had been communicating via email throughout the months prior to application for alternative service. Thus, the court held that service via email was appropriate, as it was “reasonably calculated to apprise defendant of the pending lawsuit[,] and thus satisfied due process.”

Dentist Fails To Take A Bite Out Of Her Own Contract

A proposed class-action lawsuit accusing a Manhattan dentist of forcing patients to sign an unconscionable contract barring them from writing bad reviews on customer review websites, may continue, according to a federal judge. As Southern District Judge Paul Crotty stated in his opinion and order in Lee v. Makhnevich (11-cv-8665): “This lawsuit about a toothache and the dentist’s attempt to insulate herself from criticism by patients has turned into a headache.”

According to the opinion, the Manhattan dentist, whose website describes her as a “talented and imaginative dentist and an opera singer who is driven by an incredible passion for self-expression through art,” refuses to treat patients unless they sign an agreement that they will refrain from publishing any commentary about the treatment, and if they do write any commentary, the copyright will belong to the dentist. In this case, the patient had gone to the defendant’s dental office to treat a toothache. Only after the patient signed the confidentiality agreement did the dentist treat the patient’s infected tooth. After the patient paid his bill, he tried to get the dentist and her practice to forward his paperwork to his insurer for reimbursement, but they never did, and refused to provide the patient with a copy of his dental records so we could submit the claim himself. He then recounted his negative experiences with this dentist on several websites, including “Yelp.” The day after the patient wrote the reviews, the dentist’s office sent him a letter saying he would be sued for breach of contract, defamation and copyright infringement. The letter included a draft of the complaint seeking $100,000 in damages.

The patient received three more letters, two purporting to be invoices charging him $100 per day for copyright infringement and one, from the dentist’s attorney, again threatening a lawsuit. The patient commenced a federal action and sought a declaration that the agreement is void for lack of consideration and is unconscionable. He also sought a declaration that patient reviews are “fair use” under the Copyright Act and that his reviews were not defamatory. He sought to represent a “class” of the dentist’s patients. The dentist moved to dismiss the complaint arguing that no actual controversy exists.

Article III of the U.S. Constitution and the Declaratory Judgment Act impose the jurisdictional requirement on federal courts of an “actual controversy.” The Act provides that “[i]n a case of actual controversy,” a federal court “may declare the rights … of any interested party seeking such declaration.” The federal courts apply a “totality-of-the-circumstances” test to determine a justiciable controversy in intellectual property cases. Under this test, the court’s task is to consider whether “the adversity of legal interests that exist between the parties is real and substantial and admits of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be on a hypothetical state of facts.”

The federal court rejected the defendants’ arguments and denied the motion. It held that the defendant and her practice had created the controversy with the patient by “attempting to enforce the agreement, which they extracted as a condition for getting dental treatment.” The court went on to state that “under the totality of circumstances, the controversy is sufficiently ‘real’ and ‘immediate.’ Defendants cannot pretend now that their notices to [the patient] were ‘just kidding,’ or that [the patient] lacked any reasonable apprehension of liability.” The judge continued: “A brief review of defendants’ conduct in response to [the patient’s] exercise of basic rights shows how ridiculous their arguments are.” The judge concluded: “No reasonable person could view defendants’ constant barrage of threats as anything other than a real controversy.”

Carl Sagan once said that “imagination will often carry us to worlds that never were,” but this self-proclaimed “imaginative dentist” is facing the real legal world.

Holdover Or Nonpayment?

In landlord/tenant law, the summary proceeding is a creation of the statute Real Property Actions and Proceedings Law Article 7. It is a mechanism for a landlord to take swift action against a tenant which remains in unlawful possession. There are two types of summary proceedings: “non-payment” and “holdover.” A non-payment proceeding is the route to take when a tenant fails to pay rent. A holdover proceeding is maintained to remove a tenant which is holding over beyond the “expiration of term.” How can a term expire? (1) by the lease term naturally ending; (2) by notice to quit a “month-to-month tenancy” or the like; and (3) by landlord terminating the lease early after tenant’s failure to timely cure a default.

Recently in Bay Ridge Minerva Lodge v. Lefebvre the tenants moved to dismiss a non-payment summary proceeding involving a month-to-month tenancy with no lease between the parties. The tenants claimed that the non-payment summary roceeding did not lie against a month-to-month tenancy, arguing that the landlord’s only remedy was a holdover summary proceeding.

The tenants relied upon Real Property Law Section 232-c which provides as follows:

Where a tenant whose term is longer than one month holds over after the expiration of such term, such holding over shall not give to the landlord the option to hold the tenant for a new term solely by virtue of the tenant’s holding over. In the case of such a holding over by the tenant, the landlord may proceed, in any manner permitted by law, to remove the tenant, or, if the landlord shall accept rent for any period subsequent to the expiration of such term, then, unless an agreement either express or implied is made providing otherwise, the tenancy created by the acceptance of such rent shall be a tenancy from month to month commencing on the first day after the expiration of such term.

In denying the tenants’ motion, the Court relied upon Tricarichi v. Moran, in which the Appellate Term, Second Department, stated that the tenants’ assertion that a non-payment proceeding could not be maintained because they were month-to-month tenants was incorrect. In that case, the tenants had argued that a month-to-month tenancy is renewable by continued payments and acceptance of agreed-upon monthly amounts, and to allow a non-payment proceeding against a month-to-month tenant without there being a current lease agreement would permit a landlord unilaterally to bind a tenant to payment even though there was no longer a meeting of the minds, in violation of the Real Property Law Section 232-c. However, the Appellate Term rejected this argument, concluding that Real Property Law Section 232-c “did not abolish a landlord’s right to elect to hold a month-to-month tenant for a new term solely by virtue of his holding over… Here, both the making of a rent demand by landlord the commencement of a nonpayment proceeding constitute an election by the landlord to treat the holdover tenants as tenants for a new term and not as trespassers.” Based on this same reasoning, the Court in Bay Ridge Minerva Lodge v. Lefebvre denied the tenants’ motion to dismiss.


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