| 542 Holding Corp. v Prince Fashions, Inc. |
| 2007 NY Slip Op 09869 [46 AD3d 309] |
| December 13, 2007 |
| Appellate Division, First Department |
| 542 Holding Corp., Appellant-Respondent, v PrinceFashions, Inc., et al., Respondents-Appellants, et al., Defendants. (Action No. 1.) PrinceFashions, Inc., Respondent-Appellant, v 542 Holding Corp., Appellant-Respondent. (Action No.2.) |
—[*1] Herrick, Feinstein, LLP, New York City (Scott E. Mollen of counsel), forrespondents-appellants.
Order, Supreme Court, New York County (Barbara R. Kapnick, J.), entered August 8, 2006,which, to the extent appealed and cross-appealed from in Action No. 2, granted the motion ofdefendant Prince to dismiss plaintiff 542's first and part of the third causes of action, denied theportions of 542's cross motion as sought a determination that the notice to cure and the notice ofcancellation were legally sufficient and valid, and that the lease had expired pursuant to thenotice of cancellation if Prince owed any rent to 542, denied so much of Prince's motion todismiss the second, fourth, fifth and the balance of the third causes of action and all back rentclaims accruing more than six years prior to the commencement of the ejectment action, andgranted so much of 542's cross motion as sought a declaration that such claims accruing after1996 were timely and a determination that the lease had terminated pursuant to paragraph 17 (2)if Prince was found to have owed any rent as of the date of commencement of this action,unanimously modified, on the law, Prince's motion granted to the extent of dismissing all backrent claims accruing prior to April 1999, 542's cross motion denied to the extent it sought adeclaration that said back rent claims accruing prior to April 1999 were timely, and otherwiseaffirmed, without costs.
Order, same court and Justice, entered August 9, 2006, which, to the extent appealed andcross-appealed from in Action No. 1, denied so much of defendant landlord 542's motion forpartial summary judgment as sought a determination that the notice to cure and the notice of[*2]cancellation were legally sufficient and valid, and that thelease had expired pursuant to the notice of cancellation if plaintiff tenant Prince owed any rent to542, granted so much of that motion as sought a determination that the rent claims set forth in thenotice to cure for the years 1996 and thereafter were not time-barred, and that the leaseterminated no later than the commencement of 542's ejectment action if Prince owed any rent asof April 2005, and granted Prince's cross motion for partial summary judgment declaring thenotice to cure and notice of cancellation defective, unanimously modified, on the law, 542'smotion denied with respect to those claims for back rent accruing prior to April 1999 (i.e., morethan six years prior to commencement of the ejectment action), and otherwise affirmed, withoutcosts.
"The purpose of a notice to cure is to specifically apprise the tenant of claimed defaults in itsobligations under the lease and of the forfeiture and termination of the lease if the claimeddefault is not cured within a set period of time" (Filmtrucks, Inc. v Express Indus. & Term.Corp., 127 AD2d 509, 510 [1987]). If such defaults include unpaid rent, a "proper demandfor rent must fairly afford the tenant, at least, actual notice of the alleged amount due and of theperiod for which such claim is made. At a minimum, the landlord or his agent should clearlyinform the tenant of the particular period for which a rent payment is allegedly in default and ofthe approximate good faith sum of rent assertedly due for each such period." (Schwartz vWeiss-Newell, 87 Misc 2d 558, 561 [1976].)
Here, where the notice to cure claimed defaults and sought additional rent without specifyingwhen these sums became due or when the lease-mandated annual accountings were allegedlydelivered to Prince, and, with regard to additional rent for the years 2001 and 2002, was servedprior to the running of the lease-mandated 30-day period subsequent to delivery of an annualaccounting, the motion court correctly determined that it was defective due to its "fail[ure] todelineate between the base rent and additional rent and/or to specify with particularity when therent became due." Such substantive defect in a notice to cure renders the entire notice deficient(see 200 W. 58th St. LLC v Little Egypt Corp., 7 Misc 3d 1017[A], 2005 NY Slip Op50640[U] [2005]).
The temporary restraining order only prohibited 542 from dispossessing Prince; it did not baran action to collect back rent. Thus, those claims for back rent specified in the notice to cure asaccruing more than six years prior to the commencement of this ejectment action are time-barred.
The notice of cancellation was ineffective because it was prematurely served. However,paragraph 17 (2) of the lease allowed 542 to eject Prince without notice upon breach of its [*3]obligation to pay rent (see East 82 v O'Gormley, 295 AD2d173 [2002]; Queen Art Publs., Inc. v Animazing Gallery, Inc., 2002 NY Slip Op40033[U], *7-8 [2002]). Concur—Tom, J.P., Mazzarelli, Saxe, Marlow and Williams, JJ.