Landlord Did Not Make Reasonable Application

May 14, 2009
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If a property owner or manager fails to properly notify you about back rent payments and tries to lock you out of your space, his attempt could backfire. Take the case of a New York property owner who filed a nonpayment of rent case against its tenant, a restaurant. In this commercial nonpayment proceeding, the petition and notice were served by posting them in a conspicuous place. After the tenant failed to appear, a default final judgment was entered, a warrant issued, and the tenant was evicted.

The tenant appealed to the Appellate Term, Second Department, asking the court to be restored to the space and to have the petition dismissed. The tenant said that the landlord knew that his restaurant was closed because of a kitchen ceiling collapse at the time the landlord attempted to serve the papers. The landlord admitted knowing the restaurant was closed and had the papers affixed to the restaurant’s outer door. The court reasoned that the landlord failed to make a “reasonable application” prior to resorting to placing the papers in a conspicuous place, and thus, the serving of the papers was defective.

The court said that the tenant’s motion to be restored to possession, to vacate a default final judgment and warrant, and to dismiss the petition should have been granted [Zot, LLC v. Crown Associates, Inc., February 2009].