Judge Scott Fairgrieve
Landlord commenced this commercial non-payment proceeding against tenant seeking to recover the premises in the Roosevelt Field Mall. Petitioner also sought a money judgment of over $60,000 and attorney fees in accordance with the written lease. Tenant moved for dismissal of the proceeding contending the three-day demand for rent served upon it was insufficient notice under the lease's terms. Landlord argued the language of paragraph 18.1—"right to reenter"—of the lease only applied to a holdover, not non-payment proceeding, thus a 10 day notice was not required. The court agreed finding the rationale of Reckson Operating v. LJC, applied, in that a 10 day notice was a condition precedent to commencement of a holdover suit, not a non-payment action. Here, the lease did not specify a specific notice period for commencing a non-payment proceeding, thus, the court found petitioner properly served the three-day rent demand under Real Property Actions and Proceedings Law §711(2). Further, contrary to tenant's allegation, the five day mailing extension did not apply to commercial cases. Therefore, as landlord's notices to tenant were sufficient, tenant's motion to dismiss was denied.
