It is expressly understood and agreed that in case the demised premises shall be deserted or vacated, or if default be made in the payment of rent or any part thereof as herein specified.... the Landlord may, if the Landlord so elects, at any time thereafter terminate this lease and the term hereof on giving to the Tenant five days' notice in writing of the Landlord's intention so to do, and this lease and the term hereof shall expire and come to an end on the date fixed in such notice as if the said date were the date originally fixed in this lease for the expiration hereof. Such notice may be given by mail to the Tenant addressed to the demised premises (emphasis added).
At trial the Petitioner failed to provide any evidence that such written demand notice was ever made.
ARGUMENTS of the PARTIES
Respondent argued that the failure here to serve a proper written predicate demand notice in accordance with the terms of the written lease requires dismissal of this proceeding, citing Pepe vs. Miller & Miller Consulting Actuaries, Inc., 221 AD2d 545 (2nd Dept. 1995) and [*3]Chinatown Apts. v. Chu Cho Lam, 51 NY2d 786 (1980).
Petitioner agrees that, although ordinarily the respondent would be correct, in this case, "by stipulation, prior to the trial, the respondent voluntarily surrendered possession of property [and] [e]ssentially, the stipulation transmuted this case into a plenary action on a contract claim for rent and a statutory counterclaim for alleged breach of warranty of habitability and a contract counterclaim for return of a down payment" and therefore, presumably, vitiated the requirements of the notice provisions.
FINDINGS of LAW