Thomas Jefferson Owners Corp. v Lokshin

[*1] Thomas Jefferson Owners Corp. v Lokshin 2020 NY Slip Op 51430(U) Decided on November 20, 2020 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 20, 2020
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : THOMAS P. ALIOTTA, P.J., DAVID ELLIOT, WAVNY TOUSSAINT, JJ
2019-418 Q C

Thomas Jefferson Owners Corp., Appellant,

against

Igor Lokshin, Respondent, et al., Undertenants.

The Kaw Offices of James E. Kasdon (James E. Kasdon of counsel), for appellant. Law Offices of Stuart S. Meyer, for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Queens County (Maria Ressos, J.), dated December 11, 2018. The order, insofar as appealed from, granted the branch of tenant's motion seeking to dismiss the petition and denied the branch of landlord's cross motion seeking summary judgment on the petition in a nonpayment summary proceeding.

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

Landlord, a residential cooperative corporation, brought this nonpayment summary proceeding against tenant, a shareholder in the corporation and the proprietary lessee of an apartment, alleging that tenant's rent had been unpaid from November 2017 through February 2018. The underlying rent demand included, among other things, items of "additional rent" of $900 for inspection fees and a violation clearing charge by the New York City Department of Housing and Preservation Development (HPD), and $1,610 in legal fees.

By order entered December 11, 2018, insofar as appealed from, the Civil Court granted the branch of a motion by tenant seeking to dismiss the petition and denied, as moot, the branch of a cross motion by landlord seeking summary judgment on the petition, finding, for several reasons, that the rent demand had not constituted a good faith approximation of the amount of rent due.

The HPD fees landlord included in its rent demand did not fall within the coverage of the items permitted as additional rent under the proprietary lease, and, thus, were improperly included in landlord's rent demand. Further, although the proprietary lease permits certain legal fees to be charged to tenant as additional rent, the legal bills landlord submitted were redacted without explanation, and were thus inadequate to support its demand. A rent demand setting forth the approximate good faith amount of rent owed is a statutory prerequisite to bringing a [*2]nonpayment proceeding (see EOM 106-15 217th Corp. v Severine, 62 Misc 3d 141[A], 2019 NY Slip Op 50068[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; 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]). Here, the improper fees, as well as the potentially improper fees, constituted a substantial proportion of landlord's total demand. For this reason, we find the rent demand to be defective without passing upon any other alleged deficiencies therein. Since the rent demand was defective, the Civil Court properly granted the branch of tenant's motion seeking to dismiss the petition and denied, as moot, the branch of landlord's cross motion seeking summary judgment on the petition. Landlord's remaining contention lacks merit.

Accordingly, the order, insofar as appealed from, is affirmed.

ALIOTTA, P.J., ELLIOT and TOUSSAINT, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 20, 2020