Judge Howard Baum

Respondent moved to dismiss the summary eviction proceeding against her, instituted following the alleged termination of her monthly tenancy per a 30 day notice to terminate, which stated that respondent's tenancy was terminated on April 30, 2017. In support of her motion, respondent argued that petitioner's cashing of a public assistance shelter allowance check issued on respondent's behalf and petitioner's retention of another shelter allowance check vitiated the notice of termination. In response, petitioner acknowledged that it had cashed and retained the checks but argued that such acts did not require dismissal of the proceeding because it unintentionally cashed the check with other tenant rent checks; respondent further asserted it could not return the second check. Because petitioner failed to provide evidence demonstrating that its cashing of the check was in error–or to adequately explain why it had retained a second check–the court ruled that petitioner's acts constituted acceptance of rent payments following the notice of termination. The court held that acceptance of rent following termination served to vitiate the notice of termination, and accordingly granted respondent's motion to dismiss.