Metropolitan Transportation Authority v. Cosmopolitan Aviation Corp.

In a holdover proceeding, the tenant appeals, by permission, from an order of the Appellate Term of the Supreme Court, Ninth and Tenth Judicial Districts, dated April 21, 1983, which affirmed a judgment of the Second District Court, Suffolk County (Floyd, J.), entered June 2, 1982, which awarded possession of the premises and the principal sum of $151,650.93 in rent arrears to the landlord Metropolitan Transportation Authority. Order affirmed, with costs. On October 8, 1975, landlord Metropolitan Transportation Authority (MTA) entered into a lease agreement with tenant Cosmopolitan Aviation Corporation’s (Cosmopolitan) corporate predecessor Maspeth Seven Leasing Corporation (Maspeth), for premises consisting of land and facilities at Republic Airport, Farmingdale, New York. The lease provided that in the event the lessee’s default in the performance of any covenant, condition or obligation of the lease continued for 30 days after written notice of the default from MTA, “MTA may at any time thereafter terminate this agreement on not less than 5 days written notice to lessee”. The lease further provided: “26. Notices — All notices, consents, demands, approvals, and requests (‘notices’) which are required or permitted to be given by either party to the other pursuant to any provision of this agreement shall be in writing. All such notices shall be sent by United States certified or registered mail, return receipt requested, postage pre-paid, and shall be addressed as follows (or to such other address as either party may designate from time to time by written notice to the other) * * * (ii) If to Lessee: Maspeth Seven Leasing Corporation, 14 Emerald Lane, Huntington Station, New York, 11746 Attention: George Garambone President.” Shortly after the lease was signed, Maspeth moved onto the premises and changed its name to Cosmopolitan Aviation Corporation. Cosmopolitan designated Republic Airport as its address on its letterhead, on a “Memorandum of Lease” entered into between the parties, and on other documents. Moreover, correspondence from MTA to Cosmopolitan was routinely sent to Republic Airport. On June 11, 1979, MTA sent Cosmopolitan, at its Republic address, notice that it was in default of various provisions of the lease. There is no dispute that Cosmopolitan actually received this notice. By letter dated August 24, 1979, MTA notified Cosmopolitan that the lease would terminate on September 5, 1979, because Cosmopolitan had failed to cure its lease defaults. This notice of termination was sent to both the Republic and Huntington Station addresses. By notice of petition dated September 6,1979, MTA commenced this summary 768 dispossess proceeding, alleging that Cosmopolitan had committed and failed to cure eight material lease defaults. By verified answer Cosmopolitan denied that it was in default and set forth eleven counterclaims against MTA. The trial commenced on June 1,1981. On December 21,1981, Cosmopolitan made an oral motion to dismiss the proceeding on the ground that the notice of default was defective because it was sent to Republic Airport rather than to the Huntington Station address as required by the lease. This motion was denied. The last day of testimony was April 5,1982, and, on April 26,1982, Cosmopolitan again moved to dismiss the petition based on the alleged defective notice of default. This motion was also denied. On June 2,1982, judgment was entered in favor of MTA, awarding it possession of the premises and the principal sum of $151,650.93 in rent arrears. The Appellate Term affirmed the judgment and we granted leave to appeal to this court. We likewise affirm. On this appeal, Cosmopolitan’s primary contention is that the Trial Judge erred in not dismissing the petition based on the defective notice of default. We disagree. Because equity abhors forfeitures of valuable leasehold interests, courts have required strict compliance with the termination provisions of leases (see Fifty States Mgt. Corp. v Pioneer Auto Parks, 46 NY2d 573; Hendrickson u Lexington Oil Co., 41 AD2d 672; 220 West 42 Assoc, v Cohen, 60 Mise 2d 983). Indeed, in Hendrickson (supra), even though the tenant was given actual notice of his rent default, we reversed an order affirming a judgment terminating the lease because the landlord failed to serve a 10-day notice of default by registered mail as required by the lease. In this case, however, not only did Cosmopolitan receive actual notice of its defaults, it proceeded to trial without raising an objection to the notice and affirmatively embraced the court’s jurisdiction by raising counterclaims. Cosmopolitan’s first objection to the default notice came on the 18th day of trial, which was two and one-half years after it received the notice, over two years after it received the dispossess petition, over one year from serving its answer and counterclaims, and more than six months after the trial began. Cosmopolitan has, therefore, waived its right to complain about any defect which may have existed in the default notice (see, generally, Matter of D’Agostino v Bernabel, 269 App Div 853; Kennedy v Deignan, 90 Mise 2d 238). We also reject Cosmopolitan’s contention that the trial court abused its discretion in refusing to grant a one-day continuance to allow the appearance of its nonparty witnesses. Cosmopolitan neither identified its witnesses nor made any offer of proof as to their testimony. There was absolutely no showing that such testimony would have been other than cumulative of testimony already received over the course of the lengthy trial. Accordingly, the trial court’s refusal to grant a continuance was not error (see Harrington v Smith-town Gen. Hosp., 53 AD2d 685; Pickering v Freedman, 32 AD2d 649; Warth v Moore Blind Stitcher & Overseamer Co., 125 App Div 211). Gibbons, J. P., O’Connor and Niehoff, JJ., concur.