OPINION OF THE COURT
This decision resolves the unanswered question whether, where the governing statute or lease provision permits a notice
In this commercial summary holdover proceeding, petitioner landlord seeks to recover store space at 301 East 82nd Street, New York County, which petitioner has rented to respondent on a month-to-month basis. At the close of petitioner’s direct case, upon the admissions of petitioner’s sole witness and the documents admitted in evidence at the trial December 14 and 26, 2001, respondent moved to dismiss the petition. Petitioner proffered no further evidence. Upon considering the evidence adduced, the court summarized the following findings and conclusions on the record and, for the reasons explained below, granted respondent’s motion and dismissed the petition. (CPLR 409 [b]; 4401.)
The petition alleges that respondent’s month-to-month tenancy terminated pursuant to a 30-day notice of termination served on respondent as required by Real Property Law § 232-a. The notice is signed by petitioner: “second & e. 82 realty llc.” (Exhibit 2.) Petitioner’s witness testified that the signature for petitioner on the notice is by Alan Wasserman, but that he is not a member or principal of petitioner limited liability company. Petitioner also offered a document that was admitted to show a written authorization for Wasserman to act for petitioner. This document was not attached to the notice of termination.
Respondent claims the petition must be dismissed because Wasserman’s agency or authorization to act for petitioner was not disclosed before or with the notice of termination. Respondent never raised this claim until respondent served an amended answer during trial. Petitioner contends that this claim is an affirmative defense and that pleading it at this juncture is unfair surprise.
I. The Sufficiency of Respondent’s Pleadings to Raise Its Defense
A valid notice of termination is a condition precedent to a summary holdover proceeding. (170 W. 85th St. Tenants Assn. v Cruz,
Compliance with the statutory prerequisites to a summary eviction proceeding, including service of an adequate predicate notice, constitutes a fact on which the proceeding is based and which petitioner therefore must plead and prove as part of petitioner’s prima facie case. (Real Property Law § 232-a; RPAPL 741 [4]; City of New York v Valera,
An affirmative. defense must be pleaded only as to “matters which if not pleaded would be likely to take the adverse party by surprise or would raise issues of fact not appearing on the face of a prior pleading.” (CPLR 3018 [b].) As stated, the petition sets forth compliance with Real Property Law § 232-a by alleging that petitioner terminated respondent’s month-to-month tenancy through service of a 30-day termination notice. Even in the original answer, respondent denied all allegations regarding the notice’s validity or effectiveness. Respondent’s denial sufficiently raised the adequacy of the notice as a factual issue. Respondent need not specify the grounds for its denial, because petitioner, alleging the adequacy of the notice, not respondent denying those allegations, has the burden of proof on that issue. (Northway Eng’g v Felix Indus.,
In sum, the defense set forth via a denial does not raise a new factual issue not already appearing in the petition. The fact that the notice was deficient in its execution or content may have been a surprise to petitioner, but not the unfair surprise contemplated by CPLR 3018. (Stevens v Northern Lights Assoc.,
A. The Evidence
A notice terminating a monthly tenancy must be signed by the landlord or its agent. (Real Property Law § 232-a.) If the notice is signed by the landlord’s agent, documentation of the agent’s authority need not be attached. (Sporn v Nicholas, NYLJ, Jan. 13, 1988, at 6, col 4 [App Term, 1st Dept]; Kosnik v Sterling, NYLJ, June 6, 1988, at 27, col 6 [App Term, 2d Dept].)
Here, however, the notice purported to be executed by petitioner landlord. The party signing the notice, Alan Wasserman, signed as petitioner, yet being neither a member nor a principal of petitioner, he could not accurately designate himself as petitioner. While Wasserman may have been petitioner’s agent authorized to act for petitioner in terminating respondent’s tenancy, he was nowhere identified as an agent. Nor did the evidence indicate respondent and Wasserman had dealt with each other previously, such that respondent knew he was petitioner’s agent.
Not only did the evidence fail to reveal notice to respondent of Wasserman’s agency, the only evidence offered to show petitioner had in fact granted Wasserman authority was the written authorization. This document was admitted to show only the fact of the document, not the truth of its contents, which, absent a foundation to establish an exception to the rule against hearsay, was inadmissible hearsay. (People v Clark,
B. The Standard to Be Applied
Even if Wasserman’s agency were established by admissible evidence, however, it does not change the fact that Wasserman was not identified as executing the termination notice in that capacity. Where a party signs as the landlord, not an agent, the same rules apply as where a statute or lease requires the termination notice to be signed only by the landlord. (Siegel v
The rationale for these rules is that the tenant is entitled to notice of the signer’s authority to act for the landlord. Where the governing statute or lease provision requires notice by the landlord, the tenant is entitled to know that the party executing the notice is in fact authorized to execute the notice for the landlord. Otherwise the tenant is entitled to ignore the notice as not emanating from the requisite party. (Siegel v Kentucky Fried Chicken,
Where the governing statute or lease provision permits notice by the landlord or its agent, the tenant is entitled to know at minimum that one or the other is executing the notice. If the notice represents that it is from the landlord, but is not, the notice is equally as ineffective as one that lacks the signer’s authority to act for the landlord. (Linroc Enters. v 1359 Broadway Assoc.,
If the notice is from an agent, it must at least represent that it is and in fact be so, even if the authorization need not be attached. The notice must state, for example, that it is signed on behalf of the landlord by its agent (Sporn v Nicholas, NYLJ, Jan. 13, 1988, at 6, col 4) or, similarly, by an agent for the landlord. (Kosnik v Sterling, NYLJ, June 6, 1988, at 27, col 6.)
Here Wasserman was identified as petitioner on the termination notice, when he was not petitioner and may or may not have been an agent, as the termination notice itself did not identify him as an agent, nor was it accompanied by the written authorization, nor did respondent have any other basis to know his agency. (Linroc Enters. v 1359 Broadway Assoc.,
III. Conclusion
The defect in petitioner’s termination notice, in representing that it was from petitioner, when the notice was not from petitioner, is material and substantial. This defect may not be cured retroactively by supplying the agency designation or authorization to act for petitioner to the previously served notice. (Chinatown Apts. v Chu Cho Lam,