Recitation, as required by CPLR §2219(a), of the papers considered in the review of motion sequence 1. PAPERS NUMBERED Notice of Motion, Affirmation & Exhibits 1, NYSCEF # 12-15 Affirmation in Opposition 2, NYSCEF # 16 Reply Affirmation 3, NYSCEF # 17 DECISION/ORDER For the reasons stated below, the court grants Respondent’s motion to dismiss (motion sequence 1). FACTUAL AND PROCEDURAL BACKGROUND This is a summary non-payment proceeding. Petitioner alleges that the apartment is not subject to rent regulation because it is a Mitchell-Lama. Respondent moves to dismiss the proceeding and argues that the rent demand is not a good faith approximation of the rent owed. Respondent points out that of the $6,863.20, $546.00 are uncollectible air conditioning and dishwasher fees. Among other contentions, Petitioner maintains that the rent demand is a good faith approximation of the rent due. LEGAL ANALYSIS a. Is the rent demand a good faith approximation of the rent owed? In evaluating whether this rent demand is defective, the court is guided by the Honorable Kitson’s decision in 75 Wall Associates LLC v. Zordan, 78 Misc 3d 1236(A), 2023 NY Slip Op 50435(U) (Civ Ct NY County 2023). In Zordan, the balance reflected in the rent demand was $26,028.64. However, as the course of litigation would reveal, this amount included “as little as $678.64 in electric charges, and as much as $2,105.84″ (Id.). Judge Kitson reasoned that prior to the adoption of the HSTPA “such a discrepancy or the inclusion of non-rent fees as sought in this rent demand may not have rendered such a demand defective” but the new RPAPL §702 “amounts to an absolute bar to Petitioner seeking non-rent fees as part of the basis to commence a summary proceeding relating to a residential dwelling. […] Petitioner seeks non-rent fees in clear contravention of RPAPL §702(10).” Thus, “[e]ven viewing this in a light most favorable to Petitioner, the fact that the amounts sought in the rent demand contain non-rent fees, defeats Petitioner’s contention that the rent demanded was a good faith approximation of the rent arrears” (75 Wall Assoc. LLC v. Zordan, supra, 78 Misc 3d 1236[A]). In the instant case, the 14-day predicate notice demands payment of $6,863.20 broken down as follows: January 2022-$567.00; February 2022-$899.40; March 2022-$899.40; April 2022-$899.40; May 2022-$899.40; June 2022-$899.40; July 2022-$899.40; and August 2022-$899.40 (NYSCEF # 1, page 4). It is clear from the ledger that the $899.40 is comprised of monthly charges for $821.40 in rent, $63.00 in air conditioning charges, and $15.00 in appliance fees for a dishwasher (NYSCEF # 15). At most, the rent that was due for this period was $6316.80 ($567.00 for January 2022 plus $821.40 for February 2022 to August 2022). The percentage difference between the rent that was due ($6316.80) and what was demanded ($6,863.20) is nearly 8 percent. Although the decision in 75 Wall Assoc. LLC v. Zordan observed that RPAPL §702 is an absolute bar to collection of non-rent fees, courts can overlook de minimis errors in a rent demand. For example in Ciampa US LLC v. Satterfield, the court found that a 1.8 percent error was a minor inaccuracy that did not render the rent demand defective (Ciampa US LLC v. Satterfield, 79 Misc 3d 1227[A], 2023 NY Slip Op 50734[U] [Civ Ct Bronx County 2023]). However, in the instant case, the inclusion of non-rent charges has caused a percentage error that approaches double digits. The inclusion of these charges is not de minimus error and cannot be aligned with the case law that requires a good faith approximation of the rent owed. In light of 75 Wall Assoc. LLC v. Zordan, and for the reasons stated above, the instant petition is dismissed without prejudice. This constitutes the decision/order of this court. Dated: November 27, 2023
