Judge Diane E. Lutwak

Tenants moved for leave to interpose an amended answer and dismissal of this nonpayment eviction proceeding by landlord asserting a res judicata defense, and a defective predicate rent demand. Landlord argued monthly rent of over $1,000 and rent and additional rent of over $2,600 was due, including over $1,200 for “retro charge” attributed to June 2016. Tenants claimed the retro charge was essentially for major capital improvements, but same was previously litigated in a nonpayment suit. Landlord alleged it waived the MCI making tenants' claim on same moot, but the court found same unavailing. The court stated tenants' and landlord's own exhibits reflected payments were made for months landlord asserted amounts were due. It also noted tenants were correct the petition must be dismissed as it was based on an unamendable, defective predicate rent demand, stating same was a condition precedent to commencement of a nonpayment proceeding. Thus, as the rent demand alleged rent arrears without asserting facts fitting any cognizable legal theory that tenants could owe such sum, the court found same defective, and required dismissal, and granting tenants' motion.