Yui Woon Kwong v. Sun Po Eng

— Order, Appellate Term, First Department (Ostrau, P. J., Riccobono, Miller, JJ.), entered June 28, 1991, which, inter alia, modified, to the extent of denying tenant’s motion to dismiss the nonpayment petition and of reinstating said petition, an order of the Civil Court (Peter Tom, J.), dated June 8, 1990, which granted reargument and on reargument adhered to its original decision granting tenant’s motion to dismiss the nonpayment petition, affirmed, without costs. Petitioners are the owners of 56 Henry Street, an apartment building located in Manhattan. Respondent is the statutory tenant of a rent controlled apartment in that building. The petition in this summary nonpayment proceeding alleged, inter alia, that over $10,000 in rent was due for October 1, 1983 — September 30, 1984; October 1, 1984 — December 31, [559] 1985; and January 1, 1986 — July 31, 1989, and that by virtue of a three-day demand notice for payment pursuant to RPAPL 711 (2), served on tenant on July 12, 1989, tenant was in default. RPAPL 711 states in pertinent part: “Grounds where landlord-tenant relationship exists. “A tenant shall include an occupant of one or more rooms in a rooming house or a resident, not including a transient occupant, of one or more rooms in a hotel who has been in possession for thirty consecutive days or longer; he shall not be removed from possession except in a special proceeding. A special proceeding may be maintained under this article upon the following grounds * * * “2. The tenant has defaulted in the payment of rent, pursuant to the agreement under which the premises are held, and a demand of the rent had been made, or at least three days’ notice in writing requiring, in the alternative, the payment of the rent, or the possession of the premises, has been served upon him as prescribed in section 735 [manner of service]”. There is no written lease between the parties herein. Before the Civil Court, tenant sought dismissal of the petition on the grounds that it failed to state a cause of action and that the court lacked jurisdiction because the three-day demand notice was signed by petitioners’ attorney and not one of the petitioners as landlord. The Civil Court granted the motion, relying chiefly upon Siegel v Kentucky Fried Chicken (108 AD2d 218 [1985], affd 67 NY2d 792 [1986] [notice of termination signed by agent or attorney not named in lease, absent proof of signer’s authority to bind the landlord, is legally insufficient]). In light of a subsequent decision of the Appellate Term, First Department in Beau Arts Props. Co. v Whelan (NYLJ, Jan. 12, 1990, at 21, col 2 [notice signed by attorney legally sufficient where landlord’s signature not required by lease or statute]), the Civil Court granted reargument. In adhering to its decision to dismiss the petition, the Civil Court concluded that the rationale of Siegel v Kentucky Fried Chicken (supra) was applicable to a three-day demand notice for payment and that this case was factually distinguishable from Beau Arts (supra). Specifically, tenant herein had a bona fide defense, protracted litigation over the legal rent, and had not previously dealt with the attorney who signed the notice. The Appellate Term, First Department reversed the Civil Court and reinstated the petition holding that “[t]he statute [560] [RPAPL 711 (2)] does not require notice from landlord personally and, this being a statutory tenancy, there is no such lease requirement extant. (Beau Arts Props. Co. v Whelan, NYLJ, Jan. 12, 1990, at 21, col 2 [App Term, 1st Dept]; 615 Co. v 354 E. 66th St. Realty Corp., NYLJ, Jan. 30, 1991, at 21, col 2 [App Term, 1st Dept].)” We agree with the Appellate Term. There is no written lease between the parties requiring that the demand be signed by the landlord, as in Siegel v Kentucky Fried Chicken, (supra). RPAPL 711 (2) does not require that the demand be signed by the landlord. Therefore, the three-day demand notice in the case at bar was not rendered legally insufficient because it was signed by the landlords’ attorney and not by the landlords. Accordingly, the petition for nonpayment should be reinstated. Sullivan, J. P., Milonas, Kupferman and Smith, JJ., concur in the majority writing; Sullivan J. P., and Milonas, J., additionally concur in a separate memorandum by Sullivan, J. P.; Asch, J. dissents in a separate memorandum, all as follows: