Opinion
LT–900546/17
04-16-2018
576 E 187TH ST. BRONX, LLC, Petitioner, v. HIZAM DELI GROCERY CORP., Assignee, Respondent.
HEIBERGER & ASSOCIATES, P.C., BY: JOSHUA ZUKOFSKY, ESQ, 589 9TH Avenue, 10th Floor, New York, New York 10018, (212) 532–0500, Attorneys for Petitioner RICHARD KWASNICK, ESQ, 80 Knolls Crescent, # 9L, Bronx, New York 10463, 718.549.3518, Attorney for Respondent
HEIBERGER & ASSOCIATES, P.C., BY: JOSHUA ZUKOFSKY, ESQ, 589 9TH Avenue, 10th Floor, New York, New York 10018, (212) 532–0500, Attorneys for Petitioner
RICHARD KWASNICK, ESQ, 80 Knolls Crescent, # 9L, Bronx, New York 10463, 718.549.3518, Attorney for Respondent
Sabrina B. Kraus, J.
BACKGROUND
This commercial summary nonpayment proceeding was commenced by 576 E 187TH ST. BRONX, LLC (Petitioner) and seeks to recover possession of the Corner Store AKA Store # 1 fl at 576 East 187th Street, Bronx, New York 10485(Subject Premises), based on the allegation that Hizam Deli Grovery Corp. (Respondent) is the Assignee of the tenant of record and has failed to pay sums due under the parties lease.
PROCEDURAL HISTORY
Petitioner issued a rent demand, designated as a five day notice, to Respondent, dated February 10, 2017, seeking $25,555.21 in rent and additional rent for the months of October 2016 through February 2017, and related charges.
The petition is dated March 9, 2017. Respondent appeared by counsel, and served an answer dated March 31, 2017, asserting six affirmative defenses and a counterclaim for attorneys fees.
An initial court date was set for April 10, 2017.
On May 11, 2017, Respondent moved for an order dismissing the petition and related relief. On June 1, 2017, Petitioner cross-moved for sanctions. On September 12, 2017, the court (Alpert, J) issued a decision denying both motions.
On October 17, 2017, Respondent moved for renewal and re-argument of Judge Alpert's decision, and Petitioner again cross-moved for sanctions. Judge Alpert granted the motion to reargue to the extent of clarifying Respondent's obligations to pay real estate taxes under the lease, and further holding that as the Real Estate taxes were not sought in the rent demand, Petitioner could not seek a judgment for same within the context of this proceeding. Judge Alpert held:
The motion to reargue is also granted based on the court's misapprehension of the facts regarding the real estate taxes. The court previously determined that the petitioner was able to seek real estate taxes as additional rent in this proceeding. However, the court overlooked the fact that the petitioner's five day notice served on respondent is devoid of any claim for real estate taxes. The petition also does not allege that real estate taxes are owed. Therefore, the petitioner cannot seek real estate taxes, as a predicate to a non payment claim, in this proceeding.
A new trial date was set for December 5, 2017.
On December 4, 2017, Petitioner delivered an "amended" five day notice to Respondent.
The amended notice sought $63,431.23 in rent arrears for a period covering October 2016 through December 2017 including real estate taxes, water charges and late fees.
On December 5, 2017, the parties were not prepared to proceed with trial and this Court passed the trial to the following morning at 9:30 am. On December 6, 2017, Petitioner made a further application to adjourn the trial, based on the fact that Lawrence McCourt Esq., the attorney designated by the law firm to handle the trial, was on jury duty. The application was granted and the trial was adjourned to March 13, 2018.
PENDING MOTIONS
On January 23, 2018, Respondent moved for an order sanctioning Petitioner's counsel and dismissing the petition for "egregious" conduct pursuant to Rule 4.2(a) of 22 NYCRR 1200 and for an order precluding Petitioner from using the amended five day demand at trial.
On March 20, 2018, Petitioner moved for an order amending the pleadings and seeking sanctions against Respondent's counsel. The court (Dominguez, J) adjourned both motions to April 16, 2018 for Petitioner to serve an additional set of reply papers and for oral argument.
On April 16, 2018, this court heard brief oral argument on the motions and reserved decision. The motions are consolidated herein for determination.
DISCUSSION
The motion and cross motion for sanctions are both denied. The court does not find that either party herein has engaged in conduct warranting sanctions or the dismissal of the proceeding for egregious behavior.
THE RENT DEMAND CAN NOT BE AMENDED AND NO AMENDED RENT DEMAND IS REQUIRED AS A PREDICATE TO AMEND THE PETITION TO DATE AT TRIAL
This court has previously addressed a similar issue in Bldg Mgmt. Co. v. Benmen [36 Misc 3d 1225(A), 959 N.Y.S.2d 87 (Civ. Ct. 2012) ].
RPAPL § 711(2) provides that a special proceeding may be maintained when a tenant defaults on rent due under a lease agreement and the rent has either been demanded from the tenant in person or pursuant to a written notice. The rent demand is often referred to as a predicate notice, because Petitioner must establish the demand as a prerequisite to being able to maintain the proceeding. One of the primary purposes of the rent demand is to give the tenant a chance to pay what is due and avoid litigation ( 2229 Creston Partners LLC v. Ramos , 31 Misc 3d 1221(A) ). The sum demanded should be a good faith approximation of the rent that a tenant would have to pay to prevent litigation ( 542 Holding Corp. v. Prince Fashions, Inc. , 46 AD3d 309 ).
RPAPL § 741(5) provides that a petition in a nonpayment proceeding "... may include a judgment for rent due ...". There is no basis to find that the amount due should be read to be limited to the amount sought in the petition or due through the date of the petition. As the Court of Appeals has held "... in summary proceedings, wherever brought, judgment for rent due may be granted, whatever the amount ( Byrne v. Padden 248 NY 243, 248 )." While the Court was addressing the monetary jurisdictional limits of lower courts, the holding is applicable to the issue of the amendment of the petition to include all amounts due through the date of the trial.
In 1979, an Appellate Term decision held that it was not error for the lower court to deny the landlord's pre-trial motion to amend the petition to date because the landlord had not established that additional demands had been made for said rents (1587 Broadway Restaurant Corp v. Magic Pyramid NYLJ Dec 19, 1979, p. 10, col. 2). This decision has been cited by a number of trial courts in denying a landlord's motion to amend the petition to date (see eg 501 Seventh Ave Ass v. 501 Seventh Avenue Bake Corp 2002 NY Slip Op 503629 [U] ). Other courts have declined to follow the holding in 1587 Broadway noting that there is no statutory basis to require multiple rent demands in a single proceeding, and the adverse consequences to the speedy nature of summary proceedings were such a requirement to be instituted by the courts (see eg JDM Washingtton Street LLC v. 90 Washington Rest Associates LLC 2012 NY Slip Op 22158 ).
In more recent years, the Appellate Term has ruled that a motion to amend the petition to include all rent due through trial is properly granted. For example, in CF Monroe v. Nemeth (N.Y.LJ Oct 25, 1994 p. 25 col 1) the Appellate Term, First Department, affirmed the lower court's decision, including the lower courts award of a judgment to include all rent due through the date of the trial. The decision provides "(t)he court's amendment of the petition to include all past due rent up to and including the date of the trial accords with the established practice in landlord-tenant court (Id)."
This holding was reaffirmed by the Appellate Term, First Department, two years later in GSL Enterprises, Inc. v. Newlinger (N.Y.LJ May 24, 1996, p. 25, col 6) where the Court noted that amendments of the petition to include rent accruing after the date of the petition should permitted, and that it was preferable to resolve all issues in one proceeding. The Court held "(t)here was no error in directing restoration of all the proceedings to the calendar and amending the 1992 petitions to include additional rents from other periods ...". The Court then cited to the holding in Nemeth , and reiterated that the amendment of a nonpayment petition to include all rent due through the date of the trial was permissible and should be granted. The Court concluded by stating "(t)here is no good reason why all claims for rent arrears arising out of this lengthy rent strike' should not be determined in a single proceeding against each tenant (id.)."
This Court finds based on the more recent Appellate Term decisions and the language of the applicable statutes that a rent demand is a jurisdictional prerequisite to the maintenance of a summary nonpayment proceeding. Once that jurisdictional requirement has been satisfied, there is no reason to treat a motion to amend the pleadings to include all rent due through the date of the trial any differently then any other motion to amend the pleadings. Absent prejudice or surprise the motion should be liberally granted.
In fact, in at least one case where the landlord, instead of moving to amend the petition to date at trial, chose to serve new rent demands for rent that had come due since the petition, the tenants moved for an order directing the landlord to amend the petition to include current rent ( Solow v. Wellner 142 Misc 2d 383 ). The court granted the tenants' motion to the extent of staying the landlord from proceeding on the new rent demands, again citing the preference for all claims between the parties to be resolved in a single proceeding rather than multiple proceedings. The Court in Solow v. Wellner granted petitioner leave to amend the petitions to include rent accruing subsequent to the petitions, even though Petitioner had not requested said relief (id; see also West Seventy—Ninth Street Ass v. Lemi Inc 144 Misc 2d 216 motion to amend petition to include post petition rent granted as neither party nor the court would benefit from a multiplicity of pending actions between the same parties ).
Based on the foregoing, Respondent's motion precluding Petitioner from using the amended rent demand at trial is granted. The amended rent demand is a nullity since the demand may not be amended.
Petitioner alleges it served the amended rent demand to address Judge Alpert's ruling that Petitioner may not seek Real Estate Taxes in this proceeding. That ruling is law of the case and may not be changed by another Judge of concurrent jurisdiction.
However, other than Real Estate Taxes, Petitioner may seek any rent or additional rent which accrued subsequent to the petition in this proceeding, and Petitioner's cross-motion is granted to said extent.
Because Petitioner elected to move to amend the petition prior to trial rather than at trial, an amended pleading is required. The proposed amended pleading which is attached to Petitioner's moving papers is not acceptable, as it includes Real Estate Taxes in contravention of Judge Alpert's prior order. However, Petitioner may serve and file an amended petition in accordance with this court's order within ten days. Respondent may serve and file an amended answer within ten days of receipt of the amended petition.
A final trial date is set for May 15, 2018 at 9:30 am. Any further motions may only be by leave of court, via order to show cause.
This constitutes the decision and order of the court.