3170 Atlantic Ave Corp. v. Jereis
Judge Katherine Levine
In a case of apparent first impression, the court opined if a non-payment petition brought under Real Property Actions and Proceedings Law §741 should be dismissed if the petition was dated and verified two days before the five day notice for rent due expired, but served and filed after the expiration of the five day notice. Tenants moved to dismiss the petition as it was dated and verified prematurely and before the expiration of the five day notice served on Ratner. They argued §711 mandated the five day notice expire before landlord could file a petition claiming it was not paid. Landlord claimed the petition was filed and served three days after the five day notice expired, thus was not defective. The court found the verification was not defective as it was not prematurely verified, but was verified on the same date the petition was sworn to by an attorney, finding it was not divested of jurisdiction. Also, it noted commencement of a proceeding did not hinge on the date of verification or the date the petition was sworn to, but on the date when service of notice of the petition and petition was completed, here, four days after service of the five day notice expired. Thus, the petition was timely commenced, and dismissal was denied.