Predicate Notices Issued by Agents of the Landlord
A decision issued in October of this year by Judge Scott Fairgrieve of District Court, Nassau County in Karron v. Karron1 revisits the issue of when is it appropriate for an attorney or agent of the landlord to issue a notice to cure or notice of termination on the landlord's behalf. In light of this decision, we thought it would be useful to summarize the law in the area.
We start with the 1964 decision of Supreme Court, New York County in Granet Construction v. Longo.2 In that case, the two separate landlords had delivered two letters purporting to terminate the tenant's lease. Both of the letters were signed by attorneys, as "attorneys for the landlords." The court ruled that "unless the lease provides otherwise a notice must be given by the landlords themselves; a notice given by an attorney will not do," with the proviso that "a letter from an attorney, if authenticated or if disclosing authority, will be recognized."3
Proof of Authority
The court found that the termination notices at issue were defective, because the mere statement by the attorneys in the notices of termination that they were the "attorneys for the landlords" was insufficient to disclose the attorneys' authority to issue the notice. The court stated as follows in ruling against the landlords:
The letter of October 16 indicates that the conclusions as to the amounts due, defaults and breaches, are conclusions reached by the attorneys as a result of information they had received and of their investigations. It was they who concluded that "the landlords have the right to terminate the lease and to reenter the premises and repossess the same," and it was they who stated that unless the defaults were cured within ten days "the landlords shall consider the lease terminated." And it was the attorneys who in the second letter declared the lease "canceled and terminated." The fact that the letters came from the attorneys is of significance here in view of the contents. …I think I should follow the practice of requiring a notice of this sort to come from the landlords themselves. The tenant cannot be asked to determine for itself and at its peril the extent of the attorneys' authority.
Similarly, in 747 So. Blvd. Realty v. Wein-Rose,4 the court held that the subject termination notice issued by an attorney was ineffective, following the rule that "in the absence of a provision in the lease authorizing landlord's attorney to give the notice of termination, it is ineffective."5 The court found that the notice was invalid because it was given by the attorney for the landlord, "not indicating his authority nor reciting that it was given on behalf of the landlord."6
The Appellate Division then had the opportunity to rule on this issue in its 1985 decision in Siegel v. Kentucky Fried Chicken of Long Island,7 In Siegel, the landlord's attorney sent a notice of default to the tenant, in which he had identified himself as the landlord's attorney, which notice gave the tenant five days to cure the defaults enumerated therein. When the tenant failed to cure, the landlord's attorney sent a notice of termination to the tenant, in which he "reiterated his status as the landlord's attorney." The landlord then commenced a summary holdover proceeding in District Court, Nassau County based on the notice of termination. The District Court granted the tenant's motion to dismiss the petition, holding that the notice of termination, which was sent by counsel, was "defective as a matter of law." On appeal, the Appellate Term reversed and reinstated the petition, holding that the notice of termination was not invalid "inasmuch as it adequately disclosed [the attorney's] authority and purported to emanate from the landlord."
The Appellate Division reversed the Appellate Term, and reinstated the District Court's decision dismissing the petition on the ground that the termination notice was defective. In so holding, the court stated the rule as follows as to whether a notice of termination signed by an attorney or agent of landlord is valid:
A notice of termination signed by an agent or attorney who is not named in the lease as authorized to act for the landlord in such matters, and which is not authenticated or accompanied by proof of the latter's authority to bind the landlord in the giving of such notice, is legally insufficient to terminate the tenancy.8
The court stated that "the mere assertion of authority on the face of the notice by a total stranger to the transaction that he is the landlord's attorney and that he is authorized to act on the latter's behalf," without more, "cannot be deemed to provide the tenant with the surety of notice to which he is contractually entitled."9
In stating the rationale for the rule, the court observed that:
While it may be true that a tenant who is in default under the terms of his lease has no cause to complain about the messenger who delivers his landlord's notice to cure, the fact remains that he is entitled to know whether his landlord is insisting upon the strict performance of all of the covenants of the lease, i.e., whether the only person who is entitled to insist upon full compliance actually desires that these often technical defaults be cured. In addition, and more important, a tenant is also entitled to know "with safety" whether the notice to terminate emanates from a person with the requisite authority, for if he acts upon such notice to vacate the premises, he may later be found to have acted at his peril should the landlord prevail in a claim that the notice was unauthorized.10