RECITATION, AS REQUIRED BY CPLR 2219(A), OF THE PAPERS CONSIDERED IN THE REVIEW OF THIS MOTION BY RESPONDENT TO DISMISS THIS PROCEEDINGPAPERS NUMBEREDNotice of Motion, Affidavits & Affirmation Annexed 1-3Answering Affidavits & Affirmation Annexed 10-11Replying Affidavits & Affirmation Annexed 18Memorandum of Law 4Exhibits 5-9, 12-17DECISION/ORDER UPON THE FOREGOING CITED PAPERS, THE DECISION/ORDER IN THIS MOTION IS AS FOLLOWS:Petitioner commenced this nonpayment proceeding on or about August 2018 after service of a demand for rent. The petition seeks $54,263.33 in rent arrears and fees for the period of December 2017 through August 2018. Respondent initially appeared pro se, and interposed an answer asserting that the rent or part of the rent had already been paid to Petitioner.A guardian ad litem was later appointed to assist Respondent in this proceeding. Respondent then retained counsel, and now seeks an order dismissing this proceeding pursuant to CPLR §3211(a) (7) and RPAPL §711 (2) on the ground that the rent demand and the petition seek non rent fees which render both the rent demand and the petition defective. In the alternative, Respondent seeks an order granting partial summary judgment in her favor pursuant to CPLR §3212 (e), severing the non rent fees Petitioner seeks herein.In support of her motion, Respondent argues that Petitioner’s rent demand is defective because it seeks rent in excess of the legal regulated rent. Specifically, Respondent argues that Petitioner seeks less than two months of actual rent from Respondent at the rate of $743.53 per month, and seeks an additional $53,020.00 in fees which includes Department of Building (“DOB”) fines and legal fees. Respondent argues that Petitioner is seeking to collect these fees as “additional rent” absent any lease provision deeming them such.Petitioner opposes, and asserts that the leases the parties executed in 1987, 1998 and 2005 contain provisions that Respondent shall be responsible for any fees incurred by the landlord resulting from Respondent’s breach of the leases, and that these fees would be collected as “additional rent.” Petitioner argues that it incurred the DOB fines as a result of alterations Respondent made to the apartment which fall within the purview of the parties’ lease agreements.In reply, Respondent contends that even if previous leases contained language that deems the DOB fees “additional rent,” that language is not contained in the parties’ current lease.Pursuant to CPLR §3211(a)(7), a party may move for judgment dismissing one or more causes of action asserted against him on the ground that the pleading fails to state a cause of action. On a motion to dismiss pursuant to CPLR §3211, “the pleading is to be afforded a liberal construction” and “the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one” (Leon v. Martinez, 84 NY2d 83, 88, 638 NE2d 511 [1994]) (internal quotation marks omitted). CPLR §3212 (e) provides, a party may move for partial summary judgment or severance as to one or more causes of action or part thereof, in its favor to the extent warranted, on such terms as may be just and the court may also direct that the cause of action as to which summary judgment is granted shall be severed from any remaining cause of action.A proper rent demand is a predicate to the commencement of a nonpayment proceeding (see RPAPL §711 [2]). The demand “must adequately [inform] the tenant of the particular periods for which rent payments [are] allegedly owed and the approximate good faith amount of rent assertedly due for each such period” (100 Audubon Holdings LP v. Hernandez, 28 Misc 3d 140 (A), 958 NYS2d 62 [App Term, 1st Dept 2010]; Brusco v. Miller, 167 Misc 2d 54, 639 NYS2d 246 [App Term, 1st Dept 1995]). However, a summary nonpayment proceeding cannot be maintained where the sole basis for the proceeding are charges other than the rent (see Silverset Properties v. Prisco, 142 Misc2d 849, 538 NYS2d 689 [City Ct, City of Yonkers 1988]).Here, although three of the parties’ leases contain provisions for additional rent and provide that Respondent would be responsible for the cost associated with the cost of any condition created by Respondent, Petitioner may not seek said fees within the context of this proceeding. Petitioner’s remedy is to seek relief in a plenary action.Based on the foregoing, the part of Respondent’s motion which seeks an order granting summary judgment and severing the non rent fees is GRANTED and the fees are severed without prejudice. The part of Respondent’s motion which seeks an order dismissing the proceeding is DENIED. The proceeding is restored to the Part G calendar on August 19, 2019 at 9:30 a.m. for settlement or trial as to Petitioner’s claim for rent only.This constitutes the decision and order of the Court.Dated: July 8, 2019
