DECISION/ORDERAFTER TRIAL After trial, in the instant nonpayment proceeding, the Court makes the following findings and determination:Valentino R Reppuci/ Luisa Reppucci Trustees of the Valentino R Reppucci/ Luisa Reppucci Revocable Trust (“Petitioners”) commenced this summary nonpayment proceeding seeking rent arrears from Nikolle Nika (“Respondent”) for the period of December 2017 and January 2018. The total rent sought in the Petition was $2,600 based on a monthly rent of $1,300. Respondent occupies an unregulated unit located at 2186 Paulding Avenue, Apartment 1, Bronx, New York 10462 (“Premises”).The proceeding was sent to this Part for trial on September 21, 2018. The trial was held over the course of two days. Both sides are represented by counsel. Petitioners presented their prima facie on the first day of trial and the Court afforded Respondent’s attorney an adjournment to allow Respondent to physically appear in defense as he was absent on the first day of trial. Although Respondent failed to appear at trial on the adjourn date, his guardian ad litem, Nicola Demarco, was present.It is undisputed that Respondent signed a lease agreement for the premises: a lease, dated April 26, 2017, which commenced on May 1, 2017 and expired on April 30, 2018 at a legal rent of $1,300 per month. It is also undisputed that Valentino Reppucci served two written notices demanding the rent: one dated December 15, 2017 and a second dated December 30, 2017. Each notice was hand-written by Valentino Reppucci and entered into evidence.The threshold issue here is whether the rent was properly demanded from the Respondent. Prior to a landlord commencing a nonpayment proceeding, RPAPL §711 [2] requires a landlord to demand rent from the tenant. It is a basic tenet that a nonpayment proceeding is subject to dismissal absent a proper demand for rent. (see e.g. Community Housing Innovations, Inc. v. Franklin, 14 Misc.3d 131 [A] [App Term,. 2d Dept, 9th & 10th Jud Dists 2007]). Where a landlord chooses to employ the use of a written rent demand, the statute specifically requires that said demand use the alternative language of demanding possession or payment (see generally Schwartz v. Weiss-Newell, 87 Misc.2d 558 (Civ Ct, New York County 1976).The rent demand at bar demanded payment but failed to demand, in the alternative, possession of the premises. Nor did the rent demand, at bare minimum, warn the Respondent that a proceeding seeking possession would be commenced in the absence of payment. Petitioner having failed to meet the strictures of the statutory language, the proceeding is dismissed without prejudice. In dismissing the proceeding on the above ground, the Court does not reach the issue of whether the Respondent had capacity to enter into the April 26, 2017 lease agreement. Nothing in this Decision/Order shall be read to preclude the Petitioner from seeking any outstanding use & occupancy in a concurrent holdover proceeding between the parties under L&T Index No.: 47528/2018.This constitutes the decision and order of the court.Dated: Bronx, New YorkOctober 30, 2018
