Dendy v McAlpine

[*1] Dendy v McAlpine 2010 NY Slip Op 50890(U) [27 Misc 3d 138(A)] Decided on May 13, 2010 Appellate Term, Second Department 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 13, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., RIOS and STEINHARDT, JJ
2009-1526 Q C.

TERRI DENDY, Appellant,

against

Jenee McAlpine, Respondent, -and- JOHN DOE and JANE DOE, Undertenants.

Appeal from an order of the Civil Court of the City of New York, Queens County (Anne Katz, J.), dated June 1, 2009. The order granted tenant's motion to dismiss the petition.

ORDERED that the order is affirmed without costs.

In this nonpayment proceeding, the petition alleges that tenant owed monthly rent of $950 for the months of February 2009 and March 2009. Annexed to the petition was a copy of a three-day rent notice, which was served on March 5, 2009 and which stated that tenant owed $950 for the month of February 2009. Tenant moved to dismiss the petition on the ground that the three-day rent notice was defective as a matter of law in that it failed to give a good faith estimate of the arrears owed. Tenant noted that the Department of Social Services (DSS) had begun paying a shelter allowance on behalf of tenant in February 2009 and that two checks from DSS totalling $849 had been cashed by landlord in February, prior to the service of the rent notice, and an additional two checks had been cashed in March, prior to the commencement of this proceeding. Tenant annexed to her motion papers copies of the front and back sides of said checks, [*2]establishing that they had been cashed by landlord and that tenant only owed the sum of $101 toward February rent at the time the notice demanding $950 for February was served.

Since the predicate rent notice failed to properly set forth the approximate good faith amount of rent owed, the notice was defective (see 542 Holding Corp. v Prince Fashions, Inc., 46 AD3d 309 [2007]; ShopRite Supermarkets, Inc. v Yonkers Plaza Shopping, LLC, 29 AD3d 564 [2006]; Rochdale Vil., Inc. v Goode, 16 Misc 3d 49 [App Term, 2d & 11th Jud Dists 2007]). Accordingly, the order of the Civil Court granting tenant's motion to dismiss the petition is affirmed.

Weston, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: May 13, 2010