Opinion
2020-772 S C
09-09-2021
Nicole Moniaci, Respondent, v. Robert Kelly, Appellant.
Nassau/Suffolk Legal Services, (William Stuber of counsel), for appellant. Nicole Moniaci, respondent pro se (no brief filed).
Unpublished Opinion
Nassau/Suffolk Legal Services, (William Stuber of counsel), for appellant.
Nicole Moniaci, respondent pro se (no brief filed).
PRESENT JERRY GARGUILO, J.P., ELIZABETH H. EMERSON, TIMOTHY S. DRISCOLL, JJ
Appeal from a final judgment of the District Court of Suffolk County, Sixth District (James P. Flanagan, J.), entered March 5, 2020. The final judgment, entered pursuant to a decision of that court dated February 10, 2020, after a nonjury trial, awarded landlord possession and the sum of $5,600 in a nonpayment summary proceeding.
ORDERED that, on the court's own motion, the notice of appeal from the decision dated February 10, 2020 is deemed a premature notice of appeal from the final judgment entered March 5, 2020 (see CPLR 5520 [c]); and it is further, ORDERED that the final judgment is affirmed, without costs.
In this nonpayment proceeding, the predicate notice alleged that $4,000 in rent was due at a rate of $800 per month for five months, August 2019 through December 2019, and that an additional $930 was due as a result of "prior partial payment." Consequently, the total amount of rent arrears upon which the proceeding was based was $4,930. During the course of a nonjury trial, landlord "withdrew" the portion of the petition based on the purported $930 in arrears. Following the trial, the District Court awarded landlord possession and the sum of $5,600, representing seven months' rent, including January and February 2020, and a final judgment was entered on March 5, 2020.
A proper rent demand is a statutory prerequisite for a nonpayment proceeding (see RPAPL 711 [2]) and an element of a landlord's prima facie case (see Community Hous. Innovations, Inc. v Franklin, 14 Misc.3d 141[A], 2007 NY Slip Op 50050[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2007]). A rent notice must "set forth the approximate good faith amount of rent owed" (Dendy v McAlpine, 27 Misc.3d 138 [A], 2010 NY Slip Op 50890[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]; see 542 Holding Corp. v Prince Fashions, Inc., 46 A.D.3d 309 [2007]) and "fairly apprise the tenant of the periods for which rent is allegedly due and in what amounts" (Pantigo Professional Ctr., LLC v Stankevich, 60 Misc.3d 133 [A], 2018 NY Slip Op 51039[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2018]; see 10 Midwood LLC v Hyacinth, 2003 NY Slip Op 50789[U], *1 [App Term, 2d Dept, 2d & 11th Jud Dists 2003]). Here, the rent demand fairly apprised tenant that $4,000, representing five months' rent at a monthly rate of $800, was due (see 10 Midwood LLC v Hyacinth, 2003 NY Slip Op 50789[U]) and, under the circumstances presented, the additional lump sum was not a substantial amount rendering the rent demand fatally defective (see generally 2691 Hylan Blvd. LLC v Staten Is. Univ. Hosp., 8 Misc.3d 133 [A], 2005 NY Slip Op 51158[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2005]).
Accordingly, the final judgment is affirmed.
GARGUILO, J.P., EMERSON and DRISCOLL, JJ., concur.