Friday, January 25, 2019

MAKING A PROPER RENT DEMAND


Although a non-payment is a summary proceeding, the paper work should not be prepared in a summary fashion.

EOM 106-15 217th Corp. v. Severine, NYLY January 23, 2019, Date filed: 2019-01-11 Court: Appellate Term, Second Department, 2nd, 11th & 13th Judicial Districts,  Case Number: 2017-1172QC:

"A proper rent demand is a statutory prerequisite to a nonpayment proceeding (RPAPL 711 [2]) and an element of a landlord’s prima facie case (see Community Hous. Innovations, Inc. v. Franklin, 14 Misc 3d 131[A], 2007 NY Slip Op 50050[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2007]). A rent notice must “set forth the approximate good faith amount of rent owed” (Dendy v. McAlpine, 27 Misc 3d 138[A], 2010 NY Slip Op 50890[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]; see 542 Holding Corp. v. Prince Fashions, Inc., 46 AD3d 309, 311 [2007]) and “fairly apprise the tenant of the periods for which rent is allegedly due and in what amounts” (Pantigo Professional Ctr., LLC v. Stankevich, 60 Misc 3d 133[A], 2018 NY Slip Op 51039[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2018]; see 10 Midwood LLC v. Hyacinth, 2003 NY Slip Op 50789[U], *1 [App Term, 2d Dept, 2d & 11th Jud Dists 2003]). Moreover, it is well settled that, in asserting the amount of rent owed for each period, a landlord must apply the payments that it accepted to the months for which they were earmarked (see Greenbrier Garden Apts. v. Eustache, 50 Misc 3d 142[A], 2016 NY Slip Op 50210[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2016]; 270 E. 95 Props., LLC v. Kent, 49 Misc 3d at 35; 134-38 Maple St. Realty Corp. v. Medina, 3 Misc 3d 134[A], 2004 NY Slip Op 50469[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2004]; L&T E. 22 Realty Co. v. Earle, 192 Misc 2d 75, 76-77 [App Term, 2d Dept, 2d & 11th Jud Dists 2002]).

Here, the predicate rent notice, which sought rent arrears for May 2016 through September 2016, did not satisfy these requirements. While landlord admittedly had received the payments that were earmarked for May and June 2016, it failed to apply those payments to the respective periods for which they had been intended. Furthermore, landlord-although having admittedly received the payment earmarked for September 2016 rent approximately three days before the rent notice was created and 14 days before the notice was served-omitted this payment from the rent notice. In light of the magnitude of the inaccuracies in the amounts sought in the rent notice, we find that tenant may have been prejudiced in his ability to respond to the demand, formulate defenses, and avoid litigation or eviction (see Inland Diversfied Real Estate Serv., LLC v. Keiko NY, Inc., 51 Misc 3d 139[A], 2016 NY Slip Op 50613[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2016]; cf. 10 Midwood LLC v. Hyacinth, 2003 NY Slip Op 50789[U], at *1). Given that the rent notice was defective and that it cannot be amended (see Chinatown Apts. v. Chu Cho Lam, 51 NY2d 786, 787[1980]; 125 Ct. St., LLC v. Sher, 58 Misc 3d 150[A], 2018 NY Slip Op 50092[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]), the Civil Court properly granted the motion to dismiss the petition."

No comments:

Post a Comment