Sassouni v Mary's Dairy First Ave., Inc.

[*1] Sassouni v Mary's Dairy First Ave., Inc. 2006 NY Slip Op 50540(U) [11 Misc 3d 1073(A)] Decided on March 1, 2006 Civil Court Of The City Of New York, New York County Moulton, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 1, 2006
Civil Court of the City of New York, New York County

N & S Sassouni, Petitioner,

against

Mary's Dairy First Ave., Inc., Respondent.



51383/06

Peter Moulton, J.

Respondent moves for an order pursuant to CPLR 3212 (b) dismissing the petition.[FN1]

DISCUSSION

Respondent's motion is granted. In a summary non-payment proceeding the landlord is required to make an oral demand for the rent due upon the tenant or serve upon the tenant a three day notice for rent as a predicate for the commencement of the proceeding (RPAPL 711 [2]; 45th & Broadway Assoc. V. Skyline Enterprises, 144 Misc 2d 714). The evidence supports the finding that landlord failed to make a clear and unequivocal demand for rent in a specified amount, as required by statute. Thus, landlord failed to establish a predicate requirement for a summary proceeding (Matter of Salvatore & Catherine Pepe v. Miller & Miller Consulting Actuaries, 221 AD2d 545).

The petition is also dismissed due to the fact that the name of the landlord on the lease differs from the name of the landlord on the petition. A tenant is entitled to know who brings the proceeding. While this defect is amendable (Jackson v. New York City Auth., 88 Misc 2d 121), no motion to amend was made. Because the dismissal is based on the above two reasons, the court does not reach the merits of this proceeding.

CONCLUSION

Respondent's motion to dismiss the petition pursuant to CPLR 3212(b) is granted. This constitutes the decision and order of the court.

Dated: [*2]

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J.C.C. Footnotes

Footnote 1:In determining this motion, the court reviewed the following documents: 1) respondent's motion to dismiss, 2) petitioner's affidavit in opposition and, 3) respondent's affirmation in support of the motion.