- Landlord Can’t Give Notice To Cure And A Termination Notice At The Same Time
- Claim of Firing Because He Was Not Right “Cultural Fit” Warrants Jury Trial
- Rent Demand With Additional Fees Found Reasonable, Fairly Apprises Tenant of Amount Due
Landlord Can’t Give Notice To Cure And A Termination Notice At The Same Time
In B&K 236 LLC v. DiPremzio, the Landlord commenced a summary proceeding which was predicated upon a “Ten (10) Day Notice to Cure and Notice to Tenant of Termination of Tenancy and Intention to Recover Possession,” which listed several alleged violations of the Occupancy Agreement, provided deadlines to cure the alleged violations, and purported to terminate the lease if the defects were not timely cured. The tenant challenged the legality of that Notice, and thus, the summary proceeding itself.
The Notice listed the following alleged violations of the tenant’s “Occupancy Agreement”: (1) failure to provide access for inspection; (2) smoking and obstruction of hallways; (3) having a dog; (4) allowing unauthorized occupants which caused overcrowding; and (5) illegally accessing the roof. The Notice concluded by stating:
TAKE NOTICE that you are hereby requested to cure said breach on or before June 5, 2017, that being more than (10) days after the service of this Notice to Cure upon you, and that upon your failure to cure the Landlord (B & K 236 LLC) hereby elects to terminate your tenancy in accordance with the applicable provisions of law.
TAKE NOTICE that in the event of failure to cure by June 5, 2017, unless you vacate and move you property from said premises on or before June 30, 2017, the day on which your term will expire, the Landlord (B & K 236 LLC) will commence appropriate proceedings to recover possession of said premises and remove you from said premises for holding over.
After allegedly failing to cure the defects by the deadline, the Landlord commenced a summary eviction proceeding. The Tenant-Respondent argued that the notice was defective, and thus deprived the Court of subject matter jurisdiction. However, the court rejected this argument, holding that even notice is defective that does not deprive the court of subject matter jurisdiction. “Failure of a petitioner to comply with a statutory notice requirement, where applicable, represents merely the failure to comply with a condition precedent to suit and cannot properly be said to affect the court’s jurisdiction.”
Nonetheless, the Court did agree with that the notice was defective, which proved fatal to the landlord’s case. The Court held:
None of the stated grounds is supported by a factual allegation. Petitioner does not state why or when it sought access to inspect respondent’s apartment; who was smoking in and obstructing the hallways, and when; the specific nuisance caused by the dog alleged to be in respondent’s apartment, if there is a dog; any description of the unauthorized occupants; when respondent illegally accessed the roof and the substantial obligation breached by respondent’s presence there. Further, each breach allegedly violates respondent’s “Occupancy Agreement.” However, petitioner does not provide any information about which sections of the agreement respondent violated. “The deficiency in the notice arises from its failure to cite any specific prohibition in the lease which had been violated.” The notice served here does not inform respondent of the conduct which violates his lease and is simply too vague and conclusory to constitute a proper predicate for this eviction proceeding.
The Court also rejected the landlord’s claim that a notice to cure and a notice of termination may be combined into one notice. The “notice to cure itself cannot function as a substitute for a notice of termination, and a termination notice may not predate the end of the cure period.” As such, the summary proceeding was dismissed.
Claim of Firing Because He Was Not Right “Cultural Fit” Warrants Jury Trial
In Jain v. Tokio Marine Mgmt. Inc., the defendant Tokio Marine (TM), a commercial property and casualty insurer, hired plaintiff Rajiv Jain, a person of Indian descent, as a Senior Underwriter in its New York office in 2013. The crux of the dispute began when Jason Taylor took over as Jain’s boss and the interim Head of Property (“HOP”) of Tokio Marine’s New York office. Taylor and Jain experienced difficulties working together, culminating in Jain’s termination in November 2014. At that time, Taylor, together with the Global HOP and a human resources representative, met with Jain and terminated him. Jain claims that Taylor told him that Tokio Marine’s reasoning was that Jain was not the “right cultural fit.”
Relying on a Second Circuit Court of Appeals decision concluding the phrasing “better fit” or “fitting in” might have been about race and could create a fact issue for a jury, the Court here determined that the “cultural fit” language about Jain, even when isolated, was enough to create factual issues to warrant a jury trial, but especially so when used to describe the reasons why Tokio Marine did not promote Jain, precluding summary judgment.
Rent Demand With Additional Fees Found Reasonable, Fairly Apprises Tenant of Amount Due
In 120 Beach 26th St. LLC v. Samuel, the residential tenant, Samuel, sought dismissal of a non-payment summary proceeding arguing the predicate 14-day rent demand was defective because it sought to recover rent arrears and additional fees that were not part of the possessory claim and failed to apprise him of the accurate amount owed in this non-payment proceeding. He cited the newly amended RPAPL § 702 providing “no fees, charges or penalties” may be sought in a summary residential proceeding.
More accurately, the new law enacted as part of the “Housing Stability and Tenant Protection Act of 2019” provides as follows:
In a proceeding relating to a residential dwelling or housing accommodation, the term “rent” shall mean the monthly or weekly amount charged in consideration for the use and occupation of a dwelling pursuant to a written or oral rental agreement. No fees, charges or penalties other than rent may be sought in a summary proceeding pursuant to this article, notwithstanding any language to the contrary in any lease or rental agreement.
We note that the tenant’s claim here, that “no fees, charges or penalties” may be sought in a summary residential proceeding, is a misconstruction of the new statute. The statute provides that no fees, charges or penalties “other than rent” may be sought in a summary residential proceeding. Because “rent” means the monthly or weekly amount charged in consideration for the use and occupation, and if the “fees” or “charges” sought are part of the consideration for the use and occupation, then a landlord should be able to seek them in a summary proceeding. Otherwise, “other than rent” would be rendered meaningless. The legislature did not say fees, charges or penalties may be sought in a summary residential proceeding.
The Court, however, never reached that argument. Instead, it found that the inclusion of additional fees in a rent demand merely gave tenant notice of landlord’s additional claim for contractual damages provided for in the lease and did not affect the rent demand’s validity. It found the amount sought in landlord’s rent demand was an approximate good faith estimate of rent owed.
It reasoned that a “rent demand is a condition precedent to commencement of a summary nonpayment proceeding, and as such, cannot be amended. The propriety of the rent demand is an element of landlord’s prima facie case. The predicate rent demand required by RPAPL § 711(2) must clearly state the approximate good faith estimate of the sum allegedly due as well as the period for which the rent is demanded.” It further found that it “has long been the standard that inclusion of attorneys’ fees or late fees in a rent demand merely gives Respondent notice of Petitioner’s additional claim for contractual damages provided for in the parties’ lease and does not affect the validity of the rent demand” and the “inclusion of late fees or other fees in the rent demand does not in and of itself invalidate the demand, instead, the inclusion of such fees is a factor the Court considers when reviewing the reasonableness of the demand and determining whether the tenant may have been prejudiced in its ability to respond to the demand, formulate defenses, and avoid litigation or eviction.”
The Court found that additional “fees” in the rent demand were for “Tenant Liability Insurance.” It did not evaluate whether they were part of the consideration for the use and occupation of the premises (and it is not clear whether that argument was even raised), but concluded that the “$19.00 in charges constitute less than 1 percent of the $3,350.00 in rent sought in the demand. That Petitioner is no longer permitted to collect the additional fees in the context of this summary proceeding does not in and of itself invalidate an otherwise valid rent demand. The standard of review for the predicate demand has not changed. It is still that of reasonableness in all attendant circumstances, and in the case at bar, the Court finds that the rent demand is reasonable and fairly apprises Respondent of the amount due.”
This newsletter is provided by Hamburger, Maxson & Yaffe, LLP to keep its clients, prospective clients, and other interested parties informed of current legal developments that may affect or otherwise be of interest to them, and to learn more about our firm, our services and the experiences of our attorneys. The information is not intended as legal advice or legal opinion and should not be construed as such