Recitation, As Required By CPLR Section 2219(A), of the Papers Considered in the Review of this Motion:Papers NumberedNotice of Motion and Affirmation and Exhibits Annexed 1Answering Affirmation Annexed 2Affirmation in Further Support of the Motion 3DECISION/ORDER UPON THE FOREGOING CITED PAPERS, THE DECISION/ORDER IN THIS MOTION IS AS FOLLOWS:Petitioner commenced this nonpayment proceeding seeking monthly rent of $910.00 from November 2017 through March 2018 for the subject rent stabilized apartment. Respondent filed an oral, pro se answer interposing defenses including that the rent, or a portion of the rent, has already been paid to the petitioner. Respondent appeared by counsel on June 25, 2018, and served and filed a motion to dismiss the petition pursuant to CPLR 3211(a)(1) and (7) on the grounds that documentary evidence demonstrates the predicate rent demand is defective. The proceeding was adjourned three times between August 6 and December 10, 2018 at petitioner’s request to submit opposition to the motion.Respondent argues that the predicate rent demand is defective as petitioner failed to provide a good faith accounting of the arrears, and has failed to state the facts upon which this proceeding is based. The rent demand seeks arrears of $4,550.00 from November 2017 to March 2018. Petitioner’s counsel has admitted that the arrears sought in the petition date back to June 2015, December 2015, June 2016 and September 2016. (Exhibit B, the two attorney June 26, 2018 stipulation) At oral argument on December 10, 2018, petitioner’s counsel admitted the arrears date back to 2015. Respondent states she is elderly, and lives on a fixed, low income. Respondent argues that seeking arrears from three years prior to the rent demand, and listing current months due from November 2017 through February 2018 in the rent demand renders the predicate notice defective. Respondent cannot fashion a defense or understand the claims based on the rent demand served by petitioner.In opposition, petitioner argues that it assisted the respondent in determining which rent receipts she needed to produce by providing the dates from 2015 and 2016 that the landlord is actually alleging were not paid. Petitioner argues there are issues of fact in dispute but it fails to offer one factual dispute. Petitioner’s agent, Peter Rigas, attaches an affidavit and he states he agrees with his counsel’s affirmation, which is based solely on the law. Petitioner fails to offer any facts in dispute. It is undisputed that petitioner is seeking rent arrears from three years ago, i.e., June 2015, without any explanation. There was no prior nonpayment proceedings, no correspondence between the parties, or allegations of meetings with respondent to discuss rent due from 2015 and 2016. Petitioner states it “assisted” the respondent by providing the 2015 and 2016 dates in court to enable respondent to know the months the landlord was actually alleging were due and owing.In reply, respondent states this is not a summary judgment motion, but a motion pursuant to RPAPL 741(4) for failure to properly plead a cause of action, and properly state the facts upon which the proceeding is based.DiscussionThe predicate rent demand must inform the tenant of the approximate good faith sum of rent owned and the particular period for which the rent is due. A predicate rent notice must set forth”…the approximate food faith amount of rent owed…”Dendy v. Mcalpine, NYLJ May 10, 2010, p 37 c 6 (AT, 2nd Dept.) See also 402 Nostrand Ave. Corp v. Smith, 19 Misc3d 44 (AT, 2nd Dept, 2008). “…A proper demand for rent must fairly afford the tenant, at least, actual notice of the alleged amount due and of the period of which such claim is made. At a minimum, the landlord or his agent should clearly inform the tenant of the particular period for which a rent payment is allegedly in default and of the approximate good faith sum of rent assertedly due for each such period…” Schwartz v. Weiss-Newell, 87 Misc 2d 558 at 560 and 561 (Civ Ct, NY Co., 1976) See also ShopRite Supermarkets, Inc., v. Yonkers Plaza Shopping, 29 AD3d 564 (AD, 2nd Dept., 2006), Parkview Gardens LP v. Lamont, NYLJ 8/23/2008, p 28, c 3 (Civ Ct, Kings Co.); and 622 West 141st LLC v. Garcia, NYLJ 4/30/1997 p 27 c 2 (Civ Ct, NY Co.)The particular period petitioner is seeking in the proceeding is from 2015 and 2016. The predicate notice and petition seeks rent from the end of 2017 and 2018. There is no approximate good faith estimation of arrears or the particular period for which the tenant is in default of paying rent. There is no way for the respondent to fashion a defense when petitioner seeks rent from three years prior to the rent demand without stating the correct months she failed to pay. Petitioner cannot correct the errors in the predicate notice by “assisting” respondent during the litigation and finally providing the months the landlord is alleging were not paid. Petitioner has a remedy in a plenary proceeding.Based on the foregoing, the respondent’s motion is granted and the petition is dismissed. This constitutes the decision and order of the court.Dated: December 14, 2018
