Recitation, as required by CPLR 2219(A), of the papers considered in the review of this motion to dismiss:Papers NumberedNotice of Motion and Affidavits Annexed 1Answering Affirmation 2Replying Affirmation 3Exhibits 4Decision & Order Upon the foregoing cited papers, the decision and order in this motion is as follows:In this non-payment proceeding, the petitioner alleged that the respondent owed $34,877.75 through March 31, 2018. The respondent filed a pro se answer wherein he denied the allegations set forth in the petition. He also alleged that his rent should have been frozen because he has DRIE and that there were conditions in the apartment that needed repair.On the initial court date, the matter was adjourned to afford the respondent an opportunity to obtain legal representation. He was ultimately able to do so. The respondent then sought leave to serve and file an amended answer. By stipulation dated August 28, 2108, the petitioner consented to the filing of the amended answer. The parties further agreed to access dates so that the petitioner could inspect and repair certain conditions. The matter was adjourned for settlement or trial.The respondent then moved to dismiss the petition pursuant to CPLR §3211 or, in the alternative, for partial summary judgment pursuant to CPLR §3212(e). The petitioner has opposed this motion. For the reasons set forth herein, the respondent’s motion to dismiss is granted.The facts relevant to the instant motion can be briefly stated. In March 2016, Tiny Fiesta Realty Associates, the prior owner of the subject premises, commenced a non-payment proceeding against the respondent. By stipulation dated March 14, 2016, the petitioner was awarded a final judgment of possession and a possessory money in the amount of $18,850. As set forth in Exhibit “G” to the instant motion, HRA paid the prior owner $16,743.95 in May 2016. In addition, upon information and belief, the respondent paid the remaining balance.Tiny Fiesta Realty Associates, LLC sold the subject building to Concourse Realty Associates, LLC on February 2, 2017. The subject premises was sold again on June 13, 2017 to the petitioner herein, Grand Concourse Associates LLC; there was no assignment of rents executed in connection with this sale. The deeds evidencing these transactions are set forth as Exhibits “B” and “C” to the respondent’s motion.The respondent was served with a Five-Day Notice, dated March 2, 2018, wherein the petitioner alleged that the respondent owed $34, 877.75 pursuant to an attached rider which stated that the petitioner sought rent from December 2015; the rider listed each month alleged to be due twice.Pursuant to R.P.A.P.L. §711(2), a petitioner must make a demand for rent before commencing a summary non-payment proceeding. This demand must be a good faith assertion of the rent claimed to be due for the time specified and for amount specified. Community Housing Innovations, Inc. v. Franklin, 14 Misc. 3d 131(A), 836 N.Y.S. 2d 484 (App. Term 2007); Schwartz v. Weiss-Newell, 87 Misc. 2d 558, 386 N.Y.S.2d 191 (N.Y. City Civ. Ct. 1976).As set forth above, the petitioner seeks rent already paid pursuant to the terms of the stipulation between the respondent and the prior owner. The petitioner maintains that it was not aware of the prior proceeding until it was brought to its attention in the course of this litigation. The petitioner also alleged that a computer error caused each month to appear twice on the rider attached to the Five-Day Notice.The court finds this explanation to insufficient. It is submitted that it is the petitioner’s responsibility to perform due diligence in reviewing records before serving a Five-day Notice. Assuming, as the petitioner seems to suggest, that there was no information in the tenant file with respect to any prior litigation with the respondent, a review of the public records would have revealed that there had been a prior non-payment case against said respondent covering the same time period for which petitioner seeks rent herein. In addition, even a cursory review of the rider would have revealed that there were duplicate monthly entries for the amounts alleged to be due. These defects render the rent demand defective. See, e.g., 104-110 Grove Street HDFC v. Fulton, N.Y.L.J. 5/17/2017, N.Y.L.J. 1202786328746 (Civ. Kings) (a rent demand that sought rental arrears that had been received in a prior proceeding was defective). And, as a defective rent demand is not subject to amendment, the petitioner has failed to provide a predicate for the instant proceeding, thus requiring dismissal of the petition. See, e.g., Chinatown Apartments, Inc. v. Chu Cho Lam, 51 N.Y.2d 786, 433 N.Y.S. 2d 86, 412 N.E. 2d 1312 (1980).The rent demand is further defective because it seeks rent for a time period prior to the petitioner’s acquisition of the subject property. Pursuant to R.P.A.P.L. §711(2), a new owner may proceed to recover rent due to his predecessor in interest if he has a right to pursuant to an express rent assignment. Gimbel Holding Co. v. Hirschman, 1997 WL 26287 (S.D.N.Y.). And, the successor in interest must demonstrate that the rent assignment clause was executed at the same time the property was transferred. Vanderveer Estates Holding LLC v. Holmes, 27 HCR 731A, N.Y.L.J. (Civ. Ct. Kings Co.). The documents submitted demonstrate that a rent assignment clause was not executed at the same time the petitioner herein acquired the subject premises. Thus, the petitioner has no valid claim to attempt to recover any rent allegedly due before it took title.For these reasons, the rent demand is defective. As such, there is no valid predicate notice. This proceeding must be dismissed.This constitutes the decision and order of this court.Dated: April 26, 2019Bronx, New York
