Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion Papers Numbered Notice of Motion with Exhibits 1 Affirmation in Opposition with Exhibits 2 Affirmation in Reply with Exhibits 3 DECISION/ORDER After oral argument and upon the foregoing cited papers, the decision and order on this motion is as follows: BACKGROUND AND PROCEDURAL HISTORY: This summary non-payment proceeding was commenced on November 6, 2018 by petitioner, seeking rental arrears in the amount of $5,121.64. The predicate rent demand, dated September 17, 2018 and served on September 21, 2018, seeks rent of $107.61 for April 2018, and $716.29 per month for May 2018 through September 2018, for a total of $3,689.06.1 The respondent filed a pro se answer and the case first appeared on the Court’s calendar on December 3, 2018. On December 3, 2018, the matter was adjourned to January 14, 2019 for all purposes. On January 14, 2019, the matter was again adjourned to February 27, 2019 for all purposes. On February 27, 2019, respondent failed to appear, and a default judgment was entered in favor of petitioner for the sum of $5,121.64. On February 27, 2019, respondent filed a pro se order to show cause to vacate the default judgment and restore the case to the calendar. Respondent now represented by counsel, moves to vacate the default judgment and warrant, for dismissal pursuant to CPLR §3211 (a)(7) and RPAPL §711 (2), for failure to state a cause of action as well as for the allegedly fatally defective rent demand. Respondent alternatively seeks leave to serve and file an amended answer, pursuant to CPLR §3025 (b). Discussion: On a motion to dismiss under CPLR §3211 (a)(7), the court is required to afford a liberal construction of the pleadings and ascertain whether it alleges facts which fit into any cognizable legal theory. Leon v. Martinez, 84 NY2d 83, (1984). A proper demand for rent must fairly afford the tenant, at least, actual notice of the alleged amount due and of the period for which such claim is made. At a minimum, the landlord or his agent should clearly inform the tenant of the 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.” 542 Holding Corp. v. Prince Fashions, Inc., 46 A.D.3d 309, 310 (1st Dep’t 2007). A proper rent demand is a condition precedent to maintaining a nonpayment proceeding, the lack of a proper demand is fatal to maintaining such a proceeding. RPAPL section 711 (2), Chinatown Apts v. Chu.Cho Lam, 51 NY2d 786, 788, (1980). Respondent argues that petitioner’s rent demand is defective in that it fails to credit payments made on behalf of respondent by the Department of Social Services (“DSS”). Specifically, respondent argues, and petitioner’s rent breakdown confirms, DSS made the following payments during the period in question; $215 in May 2018, June through August 2018 at $716 per month, and $215 for September 2018 rent2. Respondent’s position is that those payments were particularly earmarked for the months they were issued and petitioner’s failure to credit the DSS payments in the rent demand, renders it defective. In opposition, petitioner argues the rent demand was proper because it was a good faith estimate of the amount owed by the respondent and stated the specific months, the alleged arrears were due. Petitioner contends that the fact that the rent breakdown properly credits respondent’s account with the public assistance payments further supports their position that the rent demand is not defective. Furthermore, petitioner argues, respondent’s arrears as of the date the opposition papers were filed was $8,054.14. Pursuant to the prior nonpayment proceeding, L&T index number 27720/2016, between the parties, respondent’s balance through April 2018 was $107.61. Petitioner’s current breakdown includes an opening balance from May of 2018 of $3,036.77. While petitioner’s rent demand in this proceeding is in accordance with the parties’ prior case for the amount owed for May of 2018, the rent demand in this proceeding fails to credit any of the DSS payments made on behalf of the respondent for the period of May 2018 through September of 2018 and does not give respondent “a good faith” estimate of the arrears sought. The fact that the public assistance payments are credited in the rent breakdown and not in the rent demand only furthers respondent’s argument that those payments were applied towards the rent arrears and not the months the payments were earmarked by the Department of Social Services. Where a tenant earmarks his check to indicate the period for which the payment is intended, a landlord is required to apply the payment to that period. Greenbrier Garden Apts. v. Eustache, 50 Misc. 3d 142[A], (App Term, 9th & 10th Jud Dists. 2016). Here, the rent demand is seeking rent for May 2018 through September 2018. The Department of Social Services has made payments on behalf of the respondent for this period which petitioner’s breakdown acknowledges. However, petitioner did not apply the payments to these months because if they did, the arrears would be reduced by $2,578.38. Therefore, petitioner’s rent demand fails to apprise the respondent 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.” 542 Holding Corp v. Prince Fashions, Inc, 46 AD3d 309, 311 (1st Dep’t 2007). Petitioner’s failure to credit respondent’s public assistance payments renders the rent demand defective as it fails to apprise the tenant of the correct amount of arrears due for the months alleged in the rent demand. A defective rent demand cannot be amended, and the proceeding must be dismissed. Chinatown Apts. v. Chu Cho Lam, 51 NY2d 786, 788, (1980). Accordingly, respondent’s motion to dismiss is granted and the proceeding is dismissed without prejudice. The court does not need to reach the balance of respondent’s motion as the issues raised are now moot. This constitutes the Decision and Order of the Court. Dated: September 30, 2019 Bronx, New York
