Opinion
No. L & T 63410/12.
2012-08-8
BLDG MANAGEMENT CO., INC., Petitioners–Landlord, v. Drori BENMEN, Respondent–Tenant.
Lawrence P. Wolf, Esq., Chappaqua, for Petitioner. Edward J. Sano, Esq., Central Islip, for Respondent.
Lawrence P. Wolf, Esq., Chappaqua, for Petitioner. Edward J. Sano, Esq., Central Islip, for Respondent.
SABRINA B. KRAUS, J.
BACKGROUND
This summary nonpayment proceeding was commenced by BLDG MANAGEMENT CO., INC (Petitioner) and seeks to recover possession of Apartment 9M at 435 EAST 78TH STREET (Subject Premises) based on the allegation that, DRORI BENMEN (Respondent) the tenant of record, has failed to pay rent for the Subject Premises.
PROCEDURAL HISTORY
On April 10, 2012, Petitioner issued a three day notice seeking $4925.00 in arrears. On April 23, 2012, a petition issued for the same sum. Respondent, by counsel, filed an answer on May 12, 2012, alleging a general denial. On August 2, 2012, the proceeding was assigned to Part R for trial, the trial took place on August 2, 2012, and the Court reserved decision.
TRIAL
Petitioner's prima facie case is not contested. Petitioner submitted into evidence the property registration for the Subject Building (Exhibit 1B), the apartment registration for the Subject Premises (Exhibit 2), a lease between Petitioner and Respondent commencing January 1, 2009 for a term of one year, ending December 31, 2009, at a monthly rate of $2200 (Exhibit 3), a lease renewal, commencing March 1, 2012, and ending February 28, 2013, at a monthly rate of $3750.00 (Exhibit 4), and a rent history for rent charged through August 2012, (Exhibit 5). These documents were admitted into evidence without objection.
At the close of Petitioner's case, Petitioner made an application to amend the petition to date. Respondent opposed the application to amend the petition to date, asserting a further rent demand need be established before said relief could be granted, but otherwise offered no defense.
DISCUSSION
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. The liability for the rent is based on the underlying lease agreement.
One of the primary purposes of the rent demand is to give the tenant a chance to pay what is due and avoid litigation ( Nelson v. Kaufman, N.Y.L.J., November 24, 1978, p. 12, col. 1).
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 limted 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 N.Y. 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 N.Y. 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 N.Y. 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 an 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 ).
In this case, Respondent asserts no prejudice or surprise as a result of Petitioner's motion to amend. Respondent remains in possession and is certainly aware that the rent due under his lease continues to accrue and that he has failed to pay the rent. As such the motion to amend is granted to the extent of amending the petition to include all rent due and owing through July 2012.
Based on the foregoing, the Court finds that Petitioner is awarded a final judgment for $12,175.00 for all rent due through July 2012. Issuance of the warrant shall be stayed five days for payment.
This constitutes the decision and order of this Court.