DECISION AND ORDERFACTUAL BACKGROUND The petitioner brought a nonpayment proceeding seeking judgment of eviction and a money judgment. The petitioner is the landlord of the building at 625 East 189th Street, Bronx, New York. The respondent tenant operates a pizzeria at the subject premises, designated as Store #1.The action arises from the collection of monthly rent, costs of building code violations charged as additional rent, water and sewer charges, security charges, and legal fees.The Court conducted a trial and heard testimony from the manager of the subject premises, on behalf of the petitioner, and the tenant of the subject premises, the owner of the pizzeria.PROCEDURAL HISTORYA rent demand dated December 13, 2017 was served on the respondent on January 2, 2018. The rent demand seeks collection of rent for December 2017 in the amount of $1,912.27; “FDNY penalties” in the amount of $2,750.00; water and sewer charges in the amount of $660.93; security charges in the amount of $73.55; and $875.00 in legal fees.The petition, which was served on the respondent on February 7, 2018, seeks collection of rent for January 2018 in the amount of $1,912.27; a balance of rent in the amount of $12.27 for December 2017; $7,750.00 as “FDNY penalties”; $660.93 in water and sewer charges; $73.55 in security charges; and $875.00 in legal fees.FINDINGS OF FACTThe Court admitted the petition and notice of petition into evidence as Court Exhibit #1 and #2, respectively.During the manager’s testimony, the following documents were admitted into evidence: a deed to the subject premises establishing the landlord’s ownership (Petitioner’s Exhibit #1); the lease executed between the parties (Petitioner’s Exhibit #2); a statement of itemized monies due from February 2017 to June 2018 (Petitioner’s Exhibit #3); documents corresponding to some of the items listed in Petitioner’s Exhibit #3, including legal fees, water and sewer bills, payments made by the petitioner regarding city violations, and a summons from the city (Petitioner’s Exhibit #4A to 4K); a letter from a collection attorney (Petitioner’s Exhibit #5); and another statement of itemized monies due from March 2017 to March 2018 that includes a charge of $5,000 pertaining to a city violation (Petitioner’s Exhibit #6).A review of the lease entered into evidence reflects that the lease commenced on October 1, 2014 and expires on September 30, 2019. The lease states that the premises are to be used for a pizzeria.The manager testified that the city fined the petitioner for an exhaust system placed without a permit at the subject premises, as per the testimony of the manager. The prior tenant at the subject premises also operated a pizzeria and had a lease for a pizzeria. The manager did not recall receiving building code violations prior to the respondent tenant’s occupancy. The manager did not know if there is a certificate of occupancy for the operation of a pizzeria. The manager also testified that after service of the rent demand, the respondent tenant made a partial payment of rent for December 2017 in the amount of $1,900.00. See Petitioner’s Exhibit #3 (the rent ledger).The respondent tenant testified that the exhaust system was already on the premises when he occupied it. When the respondent tenant began the lease term, he only painted the interior walls and installed floor tiles. The first time that the respondent tenant recalled being told about the violations was in 2016, but he never received any bills from the landlord for the violation that the manager entered into evidence. The operation of the respondent tenant’s business was never closed due to any Department of Building violations or Fire Department violations.DISCUSSIONIn a nonpayment proceeding, a rent demand is a jurisdictional prerequisite. See, RPAPL 711(2); Solack Estates v. Goodman, 102 Misc.2d 505 (1st Dept. 1979) (holding that “proof of personal demand or proper three-day notice is a jurisdictional requisite. The essentials of the petition and notice of petition are specifically regulated and strictly construed”).The petitioner initiated this nonpayment proceeding seeking rent for January 2018. However, there is no evidence on the record that a rent demand for January 2018′s rent was ever demanded. “A landlord cannot sue for rent that was not demanded, and part of the landlord’s prima facie case consists of proving that the rent sued for was properly demanded.” See, RCPI Landmark v. Chasm Lake Mgt. Servs., LLC, 32 Misc.3d 405, 406 (Civ. Ct. New York County 2011) (holding that by serving a rent demand for rent due only through January 2011 and including rent due through February 2011 in the petition without serving a rent demand for February 2011, the petitioner has “attempted to circumvent the requirement of first demanding that rent”).In the instant case, as argued by the respondent, the petitioner also failed to move to amend the petition to conform to the proof. Moreover, the record is depleted of evidence that a rent demand for January 2018′s rent was ever demanded, which is a prerequisite for a motion to amend a petition to conform to the proof, as established by the Appellate Term. See, RCPI Landmark v. Chasm Lake Mgt. Servs., LLC., at 408, citing to 1587 Broadway Rest. Corp. v. Magic Pyramid, NYLJ, Dec. 19, 1979, at 10 col 2 (“[T]he Appellate Term in this Department made clear that an additional demand is necessary in order to amend the petition to include rent accrued since the original demand was made”).The petitioner’s failure to strictly adhere with the requirements of RPAPL 711(2) renders the petition jurisdictionally defective. Accordingly, the petition is dismissed.As the petition has been dismissed, the Court need not address the issue of whether the lease provides for the recovery of the cost of the violations as additional rent, as argued by the petitioner.This constitutes the order and decision of the Court.
