Opinion
L & T 50137/19
03-21-2019
ROCHDALE VILLAGE INC., Petitioner-Landlord, v. Christopher STERLING Sr., Respondent-Tenant.
Matilde Pena, Esq., Matilde Pena & Associates, P.C., 336 Hutchinson Blvd, Suite A, Mount Vernon, NY 10552, Attorneys for Petitioner Lino Diaz, Esq., Queens Legal Services, 89-00 Sutphin Boulevard, 5th Floor, Jamaica, NY 11435, Attorneys for Respondent
Matilde Pena, Esq., Matilde Pena & Associates, P.C., 336 Hutchinson Blvd, Suite A, Mount Vernon, NY 10552, Attorneys for Petitioner
Lino Diaz, Esq., Queens Legal Services, 89-00 Sutphin Boulevard, 5th Floor, Jamaica, NY 11435, Attorneys for Respondent
Clinton J. Guthrie, J.
Recitation, as required by CPLR § 2219(a), of the papers considered in the review of Respondent's motion to dismiss pursuant to CPLR § 3211(a), and for alternative relief pursuant to CPLR § 3025(b) :
Papers Numbered
Notice of Motion & Affidavits Annexed 1
Notice of Cross-Motion and Affidavits Annexed
Answering Affirmations 2
Replying Affirmations 3
Exhibits
Memorandum of law
Upon the foregoing cited papers, the decision and order on Respondent's motion is as follows:
PROCEDURAL HISTORY
The immediate nonpayment proceeding was commenced by Notice of Petition and Petition dated January 2, 2019. The Petition alleges that Respondent is a Cooperator in the premises, which is a Mitchell Lama cooperative apartment. Respondent filed a pro se Answer on January 7, 2019. On the first court date, January 16, 2019, the proceeding was adjourned to February 6, 2019 for Queens Legal Services to assess representation of Respondent. Before the February 6th court date, Respondent retained Queens Legal Services as counsel, and the immediate motion was served and filed. On February 6, 2019, the proceeding was adjourned by stipulation for submission of opposition and reply. On March 19, 2019, the Court heard argument on Respondent's motion and reserved decision.
RESPONDENT'S MOTION
Respondent's motion seeks dismissal of the proceeding pursuant to CPLR § 3211(a), on multiple grounds. Dismissal is sought pursuant to CPLR § 3211(a)(7) on the basis that Petitioner's rent demand is defective. Dismissal is also sought pursuant to CPLR § 3211(a)(1), (2), (7), and/or (8), on the basis that Petitioner is seeking arrears that are barred by the statute of limitations. In the alternative, Respondent moves pursuant to amend Respondent's pro se Answer pursuant to CPLR § 3025(b).
ANALYSIS
The Appellate Term, Second Department has consistently held that "[a] proper rent demand is a statutory prerequisite to a nonpayment proceeding ( RPAPL 711(2) ) and an element of a landlord's prima facie case." EOM 106-15 217th Corp. v. Severine , 2019 NY Slip Op 50068(U) (App. Term 2d, 11th & 13th Jud. Dists. 2019). See also 125 Court St., LLC v. Sher , 2018 NY Slip Op 50092(U) (App. Term 2d, 11th & 13th Jud. Dists. 2018) ; Rochdale Village, Inc. v. Goode , 2007 NY Slip Op 27249 (App. Term 2d Dep't 2007). A proper rent demand "must ‘set forth the approximate good faith amount of rent owed’ and ‘fairly apprise the tenant of the periods for which rent is allegedly due and in what amounts.’ " EOM 106-15 217th Corp. , 2019 NY Slip Op 50068(U) (citing Dendy v. McAlpine , 2010 NY Slip Op 50890(U) (App. Term 2d, 11th & 13th Jud. Dists. 2010) and Pantigo Professional Ctr., LLC v. Stankevich , 2018 NY Slip Op 51039(U) (App. Term, 9th & 10th Jud. Dists. 2018) ).
Here, Petitioner's "Rent Demand Notice" (hereinafter "Rent Demand") seeks $ 6,181.50 "for rent, additional rent, miscellaneous charges and fees and costs of the above premises." This total amount is broken down at the bottom of the notice as follows:
Description Amount
Additional Rent 2,086.46
Late Charge 75.00
3Day Notice 10.00
Additional Rent- Prev Yrs 4,010.04 In reviewing the four corners of the Rent Demand, there is no indication of the period or periods for which the charges are being sought. Leaving aside the late and legal charges, there is no information provided to indicate the months or years for which "additional rent" is sought. Although Petitioner argues in its opposition papers that the Rent Demand "is clear and concise and is a good faith approximation of rent owed and provided the Respondent with a legally sufficient notice to allow her to defend herself," this does not reflect the substance of the actual notice. Without recourse to more information, an individual receiving the Rent Demand would be at a loss as to when the "additional rent" accrued, how much accrued in each period, or whether any payments made in those periods were credited. See, e.g. , Pantigo Professional Ctr., LLC , 2018 NY Slip Op 51039(U). As a result, Respondent was "prejudiced in his ability to respond to the rent demand, formulate defenses, and avoid litigation or eviction." EOM 106-15 217th Corp. , 2019 NY Slip Op 50068(U). Accordingly, the Rent Demand is defective as a matter of law and may not be amended. See , e.g. , Chinatown Apts. v. Chu Cho Lam , 51 NY2d 786 (1980) ; 125 Court St., LLC , 2018 NY Slip Op 50092(U).
Petitioner's opposition papers include a copy of Respondent's Occupancy Agreement, which suggests that those fees may be collectible by Petitioner, but the collectability of those charges is not integral to the determination of Respondent's motion, so the Court does not make any findings on that issue.
The Court therefore grants Respondent's motion to dismiss pursuant to CPLR § 3211(a)(7), without prejudice to Petitioner's claims. In light of the Appellate Term, Second Department's recent decision in 1646 Union, LLC v. Simpson , 2019 Slip Op 50089(U) (App. Term 2d, 11th & 13th Jud. Dists. 2019), the Court does not reach the prong of Respondent's motion that seeks to bar the collection of arrears based on the alleged running of the statute of limitations. Since service of an adequate rent demand is a "jurisdictional" requirement as defined by the Appellate Term in 1646 Union, LLC , the Court is constrained to dismiss the immediate nonpayment proceeding solely on the basis of the defective rent demand. 1646 Union, LLC , 2019 Slip Op 50089(U) ("[R]elief can be granted to a petitioner only where all the elements of the petitioner's cause of action have been made out, a requirement which is sometimes referred to as ‘jurisdictional’ ") (Citations omitted). As a result, Respondent's motion to dismiss based on the alleged running of the statute of limitations and the alternative motion to amend the pro se Answer are denied as moot and without prejudice.
In accordance with the foregoing determinations, the immediate proceeding is dismissed.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.