Opinion
23440
February 19, 2003.
Landlord appeals from an order of the Civil Court, New York County, entered March 15, 2002 (Karen S. Smith, J.) granting tenant's motion to dismiss the petition in a nonpayment summary proceeding.
Mark S. Friedlander, New York City (Jeffrey M. Rosenberg of counsel), for appellant.
Silver Silver, LLP, New York City (Nancy J. Silver of counsel), for respondent.
Before: HON. WILLIAM P. McCOOE, J.P., HON. WILLIAM J. DAVIS, HON. MARTIN SCHOENFELD, Justices.
Order entered March 15, 2002 (Karen S. Smith, J.) reversed with $10 costs, tenant's motion to dismiss the nonpayment petition is denied, and landlord's cross-motion to amend the petition is granted.
In this commercial nonpayment proceeding, landlord's petition sought additional rent for the preceding five-year period based upon the consumer price index escalation clause in the lease. Tenant made a pre-answer dismissal motion principally addressed to alleged defects in form and service of the predicate notice and petition. Civil Court granted the motion on the ground not raised in the moving papers — that landlord had failed to provide semi-annual statements for the additional rent due, as required under lease paragraph 40(B), thereby failing to comply with a condition precedent to payment (see, Weisblatt v Schwimmer, 249 A.D.2d 297; Walton v Gailrach Realty Co., 246 A.D.2d 532). In this respect, the court impermissibly treated the motion as one for summary judgment, there being no record showing of "adequate notice to the parties" (see, CPLR 3211[c]). Landlord should be afforded an opportunity to contest this issue and submit any available evidence that prior demand for the charges was made (see, Huggins v Whitney, 239 A.D.2d 174). Moreover, there is at least a question whether a sufficient demand was made for additional rent for the period ending April 1, 2001.
Landlord's cross-motion to correct the commercial petition's mistaken references to "apartment" is granted in the absence of prejudice or surprise (see, CPLR 3025[b]).
This constitutes the decision and order of the court.