Supreme Court, Appellate Term, New York,First Department.
DEVON ESTATES LTD., Petitioner-Landlord-Respondent,v.The CITY OF NEW YORK, Respondent-Tenant-Appellant.
Dec. 20, 1977.
The city, as tenant, appealed from final judgment against it awarded in Civil Court, New York County, Francis N. Pecora, J., granting possession of the subject premises to the landlord and entering judgment permitting the landlord to recover rent due. The Supreme Court, Appellate Term, First Department, held that a statute requiring allegations that 30 days had lapsed after filing claim against the city applied in a nonpayment summary proceeding to recover possession of leased premises.
Reversed and petition dismissed.
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Statute providing that plaintiff must allege, in suit against city, that 30 days had elapsed since demand was made against city and that comptroller had neglected or refused to make adjustment or payment thereof for 30 days after such presentment applied in nonpayment summary proceeding against city, as tenant, for recovery of leased premises. Administrative Code, § § 394a-1.0, 394a-1.0, subd. a. *1078 **110 W. Bernard Richland, Corp. Counsel, New York City (Morris Einhorn, New York City, and Larry Sonnenshein, Brooklyn, of counsel), for appellant.
Dreyer & Traub, New York City (Samuel Kirschenbaum and Brian Michael Seltzer, New York City, of counsel), for respondent.
Before HUGHES, J. P., and RICCOBONO and ASCH, JJ.
Final judgment entered July 12, 1977 reversed, with $30 costs, and final judgment directed in favor of tenant dismissing the petition, with costs, without prejudice to the institution of a new proceeding wherein the petitioner shall allege compliance with section 394a-1.0 of the Administrative Code of the City of New York.
Petitioner commenced this non-payment summary proceeding against The City of New York to recover possession of premises leased by the City for use by a community college. The petition contained a demand for rent in the total amount of $228,652.44, which covered alleged arrears in basic annual rent and additional rent accumulated over a fifteen month period. The City had declined to pay various portions of the basic rent and additional rent attributable to electricity charges on the ground that such charges were duplicative and not collectible under the lease, as amended. The petition did not contain an allegation that petitioner had complied with the requirements of section 394a-1.0 of the Administrative Code. Subdivision a of that section provides, in pertinent part, as follows: "In every action or special proceeding prosecuted or maintained against the **111 city, the complaint or necessary moving papers shall contain an allegation that at least thirty days have elapsed since the demand, claim or claims, upon which such action or special proceeding is founded, were presented to the comptroller for adjustment, and that he has neglected or refused to make an adjustment or payment thereof for thirty days after such presentment . . . "
Manifestly, the purpose of the provision is to permit the City to investigate the validity of a claim and determine whether it desires to pay or settle it without the expense of litigation. "It is established that, where this statute applies, compliance with it is a necessary prerequisite to the commencement of an action . . . " (Arol Development Corp. v. City of New York, App.Div., 399 N.Y.S.2d 674 (First Dept.) N.Y.L.J. December 1, 1977, p. 4, col. 3, citing *1079McGovern v. City of New York, 160 Misc. 714, 290 N.Y.S. 809, aff'd 247 App.Div. 775, 286 N.Y.S. 286, aff'd 272 N.Y. 455, 3 N.E.2d 866).
The question framed for decision is whether the requirement is applicable to a non-payment summary proceeding brought against the City. Trial Term held that it was not. We disagree. The provision is broadly drawn and applies without limitation to " . . . every action or special proceeding prosecuted or maintained against the city . . . " (emphasis added). A non-payment summary proceeding is a hybrid proceeding-action, which may terminate in a money judgment for rent due in addition to a possessory judgment (Clark v. Newton, 140 Misc. 510, 250 N.Y.S. 745, Automobile Warehouse Sales Co. v. Altobell Trucking Co., Inc. (App.Term First Dept.), N.Y.L.J. June 27, 1974, lv. to app. den. by App.Div., N.Y.L.J. September 20, 1974, p. 2). Since the predicate for the proceeding was non-payment of rent, a monetary claim amenable to adjustment by the City, the city was entitled to its opportunity to effect such an adjustment or to pay the amount demanded in order to avoid litigation and the eventful possibility of entry of a final judgment against it. Under such circumstances we see no reason why the clear import of the language of the Code should not control. While such course will necessarily delay the enforcement of petitioner's summary remedy, it is settled that the Legislature may enact, for the benefit of the municipality, permissible qualifications upon the statutory right to sue (see Salesian Society, Inc. v. Village of Ellenville, 41 N.Y.2d 521, 523-524, 393 N.Y.S.2d 972, 974, 362 N.E.2d 604, 605-606).
We reach no other question.
402 N.Y.S.2d 110, 92 Misc.2d 1077
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