Opinion
2005-864 K C.
Decided June 12, 2008.
Appeal from a final judgment of the Civil Court of the City of New York, Kings County (Thomas M. Fitzpatrick, J.), entered June 6, 2005. The final judgment, after a nonjury trial, awarded landlord possession and the sum of $8,283.
Final judgment modified by reducing the amount of the monetary award to the sum of $8,000; as so modified, affirmed without costs.
PRESENT: PESCE, P.J., GOLIA and STEINHARDT, JJ.
In this nonpayment proceeding, the petition seeks monthly rent in the amount of $1,250 for December 2004 and January through April 2005. Tenant appeared pro se and asserted, inter alia, that the amount of rent demanded was not proper, in that it did not conform with the amount which he had agreed to in the lease, $1,200. At trial, landlord David Friedman testified that, at some point, tenant's brother agreed to pay rent on behalf of tenant in the negotiated monthly amount of $1,240. Friedman testified that he discussed the rent only with tenant's brother and not with tenant. However, tenant's brother was not called as a witness. Friedman also testified that the $1,250 demanded in the petition was a typographical error and that he was not asking for more than $1,240 per month. He admitted that tenant had not personally agreed to pay rent of more than $1,200. After trial, the court awarded landlords possession and the sum of $8,283, based upon a monthly rent of $1,240, after a $400 abatement. This appeal by tenant Ben "Benjamin" Eisner ensued, and we now modify the final judgment.
The court below properly found that the testimony of landlord David Friedman was sufficient to establish that tenant owed seven months of rent. With respect to the amount of rent demanded in the predicate notice and petition, we note that tenant did not challenge the sufficiency of the rent demand in his answer or by pre-trial motion. In any event, the proof showed that landlords had a good-faith basis for demanding rent at the rate of $1,240 per month ( ShopRite Supermarkets, Inc. v Yonkers Plaza Shopping, LLC , 29 AD3d 564 ; 402 Nostrand Ave. Corp. v Smith, 19 Misc 3d 44 [App Term, 2d 11th Jud Dists 2008]), and the "typographical error" in demanding $1,250 instead of $1,240 per month was de minimis and, thus, did not invalidate the rent notice or the petition ( Oxford Towers Co., LLC v Leites , 41 AD3d 144 ; 501 Seventh Ave. Assoc., LLC v 501 Seventh Ave. Bake Corp. , 7 Misc 3d 137 [A], 2005 NY Slip Op 50799[U] [App Term, 1st Dept 2005]).
Since the proof at trial failed to establish that landlord's agreement with tenant's brother was sufficient, under the circumstances presented, to bind tenant ( see generally Holm v C.M.P. Sheet Metal, 89 AD2d 229), landlord failed to establish the existence of an agreement by tenant to pay more than $1,200 per month. Accordingly, the judgment is modified to provide for an award of seven months' rent at the rate of $1,200 per month, less the $400 abatement. We note that any issues with regard to tenant's brother's liability, if any, are not before us. We have examined tenant's other contentions and find them to be without merit.
Pesce, P.J., Golia and Steinhardt, JJ., concur.