Judge Scott Fairgrieve
Landlord Kleinfeld commenced a non-payment proceeding seeking a judgment of possession and warrant of eviction against tenants. Landlord cross-moved for a default judgment, while tenants moved for dismissal of the petition and notice of petition. Tenant claimed the rent demand was not served in accordance with Real Property Actions and Proceedings Law §735. The court noted that absent proof of a personal demand or a proper three day written notice, a non-payment proceeding was jurisdictionally defective and must be dismissed. Tenant claimed the three day notice was defective as the service requirements were not followed as petitioner served the demand under CPLR 2103, and not RPAPL §735. The court found landlord’s written demand for rent was sent via mail, but there was no indication it was given to a person of suitable age and discretion, or affixed to the door as required by §735. It stated there was no allegation that the assignment or lease provided for an alternative method of service of the predicate notice. Hence, the court found as the rent demand was not served in accordance with §735, the predicate notice was insufficient, divesting the court of jurisdiction to proceed, and dismissing the petition.
