| Matter of 2039 Jericho Turnpike Corp. v Caglayan |
| 2009 NY Slip Op 05785 [64 AD3d 609] |
| July 7, 2009 |
| Appellate Division, Second Department |
| In the Matter of 2039 Jericho Turnpike Corp.,Appellant, v Yusuf Caglayan et al., Respondents. |
—[*1] Langone & Associates, PLLC, Massapequa, N.Y. (Richard M. Langone of counsel), forrespondents.
In a holdover proceeding, the petitioner appeals, by permission, from an order of theAppellate Term of the Supreme Court for the Ninth and Tenth Judicial Districts, dated March 11,2008 (19 Misc 3d 129[A], 2008 NY Slip Op 50528[U]) which reversed a judgment of theDistrict Court, Suffolk County (Spelman, J.), entered October 30, 2006, which, after a nonjurytrial, was in favor of the petitioner awarding it possession of the subject premises and the sum of$21,421, and dismissed the petition.
Ordered that the order of the Appellate Term is reversed, on the law, with costs, and thejudgment of the District Court, Suffolk County, is reinstated.
In 1997 the respondents (hereinafter the tenants) and the appellant landlord's predecessorentered into a 10-year lease for the subject premises. A rider to the lease gave the tenants anoption to renew for a period of five years. To exercise the option, the tenants were required togive the landlord written notice, by certified mail, return receipt requested, during a specifiedtime period. Within that time period, the tenants' attorney purported to exercise the option byhandwriting a declaration to that effect on the bottom of a fax cover sheet. Neither the landlordnor his attorney acknowledged receipt of that communication or acted in any way that mightindicate that the option had been exercised. The tenants acknowledge that they never sent noticeof their intent to exercise the option by the method specified in the rider. Near the termination ofthe lease period, the landlord sent a letter to the tenants advising them that they were required tosurrender possession of the premises and, at the termination of the original lease term, thelandlord commenced a summary holdover proceeding to evict the tenants. At the trial, thelandlord's principal testified that he never received notice of the tenants' intent to exercise theoption. The District Court found that the tenants failed to exercise the option by failing to givenotice in the manner specifically provided for in the rider, and judgment was entered in favor ofthe landlord. The Appellate Term reversed, holding that "in light of the course of dealingsbetween landlord's attorney and tenants' attorney, and under all the circumstances, the noticegiven to landlord's attorney was a sufficient exercise of the option even though it was given tolandlord's attorney rather than to landlord, and not sent by certified mail, return receiptrequested" (2039 Jericho Turnpike Corp. v Caglayan, 19 Misc 3d 129[A], 2008 NY SlipOp 50528[U], *1). We reverse the Appellate Term's order and reinstate the District Court'sjudgment.[*2]
The lease rider specifically called for notice to thelandlord in a particular manner. It is undisputed that notice was not given to the landlord in thatmanner, and there is no evidence in this record that the landlord waived such notice (seeGilbert Frank Corp. v Federal Ins. Co., 70 NY2d 966, 968 [1988]). Although the tenants'principal testified that he personally delivered to the landlord's principal a notarized letterexercising the renewal option, the District Court specifically credited the testimony of thelandlord's principal that he never received any such letter. Thus, the landlord cannot be found tohave waived proper notice through the receipt of, and failure to promptly object to, notice givenin an improper manner (cf. Juleah Co.,L.P. v Greenpoint-Goldman Corp., 49 AD3d 282, 283-284 [2008]; Fortune Limousine Serv., Inc. v NextelCommunications, 35 AD3d 350, 353 [2006]; Rower v West Chamson Corp.,210 AD2d 7 [1994]; Mlcoch v Smith, 173 AD2d 443, 444-445 [1991]).
The tenants' remaining contentions are without merit. Fisher, J.P., Dillon, Covello andDickerson, JJ., concur.