Recitation, as required by CPLR 2219(A), of the papers considered in the review of this Notice of Motion: PAPERS NUMBERED NOTICE OF MOTION AND AFFIRMATION & AFFIDAVIT ANNEXED 1 ORDER TO SHOW CAUSE AND AFFIRMATION ANNEXED ANSWERING AFFIDAVIT 2 REPLYING AFFIRMATION 3 EXHIBIT D to Motion 4 STIPULATIONS OTHER DECISION/ORDER Upon the foregoing cited papers, the Decision/Order in this Notice Of Motion pursuant CPLR §3211(a)(10) and (a)(7) to dismiss is as follows: This summary non-payment proceeding was commenced seeking rent arrears for the premises known as 947 St. Marks Ave., 1C, Brooklyn. The predicate rent demand, “Fourteen Day Notice to Pay Rent”, seeks the sum of $3249.17 demanded as follows: “Base Rent AUG19 $2,650.00 JUL19 $599.17″ Respondent moves to dismiss on two grounds; failure to name a necessary party and improper rent demand. Respondent claims that she is but one of three co-tenants listed on the last renewal lease and that Petitioner’s failure to name the other two lessees warrants dismissal of the proceeding. She further argues that the rent demand is improper as it seeks an impermissible rent pursuant to Rent Stabilization and the lease. Respondent also states that as one of three tenants, she is only responsible for a portion of the rent, $950, which she claims she paid for July and August 2019. Petitioner opposes stating that respondent is the only signatory on the most recent renewal lease. It asserts that the other named tenants moved out and therefore are not necessary to this proceeding. Further, petitioner disputes respondent’s claim that she is only responsible for one-third of the rent. “‘On a motion pursuant to CPLR 3211(a)(7) to dismiss [a complaint] for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory’ (Murphy v. Department of Educ. of City of N.Y., 155 A.D.3d 637, 638, 64 N.Y.S.3d 237, quoting Phillips v. Taco Bell Corp., 152 A.D.3d 806, 807, 60 N.Y.S.3d 67).”1 The Court of Appeals has further held: “In assessing a motion under CPLR 3211 (a) (7), however, a court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint (Rovello v. Orofino Realty Co., supra, at 635) and “the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one” (Guggenheimer v. Ginzburg, 43 NY2d 268, 275; Rovello v. Orofino Realty Co., supra, at 636).”2 The most recent renewal lease between the parties is for a preferential rent of $2700.00 per month. The rent demand herein seeks two amounts, neither of which can be said to bear any relation to the preferential or the legal rent. To add to the confusion, the Petition claims the monthly rent as $2800.00 per month. In opposition to the Motion, petitioner has not offered an explanation for where the amount demanded came from and how is relates to the monthly rent. Neither has petitioner provided a breakdown to show what, if anything, was paid by respondent, in furtherance of explaining the demand. “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 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.”3 Without passing on respondent’s claimed proportional responsibility for the rent, the collectible monthly rent for this apartment is $2700. As stated previously, the demand here seeks an amount which, and in the absence of further explanation, is unrelated to the rent in the renewal lease and therefore improper. “A proper predicate rent demand is a condition precedent to commencement of a non-payment proceeding and cannot be amended nunc pro tunc. Chinatown Apts. v. Chu Cho Lam, 51 NY2d at 787 (1980); Cypress Ct. Assoc. v. McLauren, 33 Misc 3d 1203[A] [Civ. Ct. Kings Co. 2011]; Vartarian v. Brady, 184 Misc 2d 333 (Civ. Ct. NY Co. 1999); Parkchester Apts. Co. v. Walker, 1995 NY Misc. LEXIS 738, 213 N.Y.L.J. 123 (Civ. Ct. Bx. Co. 1995)”4 Pursuant to the foregoing, respondent’s Motion is granted, the respondent is awarded a final judgment dismissing the petition without prejudice. This constitutes the Decision and Order of this Court. Dated: November 9, 2020
