Appeal from an order of the District Court of Nassau County, First District (Scott Fairgrieve, J.), dated December 21, 2006. The order granted tenant's motion to dismiss the petition (see 14 Misc 3d 1207[A], 2006 NY Slip Op 52435[U]).

Order reversed without costs and tenant's motion to dismiss the petition denied.

In this commercial nonpayment proceeding, tenant moved to dismiss the petition, arguing that landlord was required, under the terms of the lease, to serve a 10-day notice of default as a condition precedent to maintaining the proceeding, and that landlord had failed to do so. Tenant also argued that landlord failed to allege in the petition the manner of service of the statutory three-day notice. Landlord opposed the
motion, contending that the lease required service of a 10-day notice only as a condition precedent to a termination of the lease and commencement of a holdover proceeding, not as a condition precedent to the maintenance of a nonpayment proceeding. Landlord also submitted a copy of the affidavit of service of the three-day notice. The District Court, agreeing with tenant that a 10-day notice was required under the terms of the lease, granted tenant's motion.

Paragraph 28 (A) of the lease provides, in pertinent part:
"Upon the occurrence, at any time prior to or during the Demised Term, of any one or more of the following events (referred to as Events of Default'):
(i) If Tenant shall default in the payment when due of any installment of rent or in the payment when due of any additional rent, and such default shall continue for a period of ten (10) days [*2]after notice by Landlord to Tenant of such default; or

The language of paragraph 28 (A) requires the giving of a 10-day notice only if landlord elects to treat tenant's nonpayment of rent as an "Event of Default" and to terminate the lease based thereon. However, nothing in paragraph 28 (A) requires landlord to treat tenant's nonpayment of rent as an "Event of Default" or forecloses landlord from maintaining a nonpayment proceeding without serving a 10-day notice. The case of Hendrickson v Lexington Oil Co. (41 AD2d 672 [1973]), relied upon by the District Court, is to be distinguished because the lease therein required the giving of a 10-day notice "before the landlord shall be entitled to commence any proceeding" (emphasis added). Consequently, the fact that, in the instant matter, a 10-day notice was not served provides no basis for dismissal of the nonpayment petition.

Tenant correctly contends that a petition must state the manner of service of the three-day notice, or the affidavit of service of the notice must be attached to the petition (see Witherbee, Sherman & Co. v Wykes, 159 App Div 24, 25 [1913]; Kentpark Realty Corp. v Lasertone Corp., 3 Misc 3d 28, 31 [App Term, 2d & 11th Jud Dists 2004]). However, landlord's failure to comply with this requirement did not render the petition jurisdictionally defective (see Birchwood Towers #2 Assoc. v Schwartz, 98 AD2d 699 [1983]; 17th Holding LLC v Rivera, 195 Misc 2d 531 [App Term, 2d & 11th Jud Dists
2002]), and landlord's later submission of the affidavit of service cured the defect. Under the circumstances, tenant showed no proper basis for dismissal of the petition. Accordingly, tenant's motion to dismiss the petition is denied.

Rudolph, P.J., McCabe and Tanenbaum, JJ., concur.
Decision Date: December 7, 2007