97-101 Realty LLC v Sanchez

[*1] 97-101 Realty LLC v Sanchez 2016 NY Slip Op 50350(U) Decided on March 9, 2016 Civil Court Of The City Of New York, Kings County Kuzniewski, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 9, 2016
Civil Court of the City of New York, Kings County

97-101 Realty LLC., Petitioner,

against

Escaleth Sanchez, Respondent-Tenants, "JOHN DOE" & "JANE DOE" Undertenants.



L & T84457 /2015



Petitioner's attorney: Law Offices of Scott D. Gross by Scott D. Gross

151 Willis Avenue Mineola, N.Y. 11501

Respondent's attorney: Make The Road New York by Ryan Napoli

301 Grove Street Brooklyn, N.Y. 11237
Jeannine Baer Kuzniewski, J.

Recitation, as required by CPLR 2219(A), of the papers considered in the review of this Notice of Motion:

PAPERS/NUMBERED

NOTICE OF MOTION AND AFFIDAVITS & AFFIRMATION ANNEXED 1

ORDER TO SHOW CAUSE AND AFFIRMATION ANNEXED

ANSWER AFFIRMATION 2

REPLYING AFFIRMATION 3

EXHIBITS

STIPULATIONS

OTHER Amended Petition 4

Upon the foregoing cited papers, the Decision/Order in this Notice Of Motion pursuant to CPLR §3212, §3211(a)(2) and §3211(a)(2)(7) for an Order dismissing the Petition is as follows:

On July 30, 2015 the Petitioner served the Respondent with a 5 Day Notice To Tenant demanding rent for January 2015 through March 2015 at the monthly rent of $1655.25 and April 2015 through July 2015 at the monthly rent of $1700.77. The demand further required late fees, [*2]bounced check fees and a security charge. The Respondent has moved by Notice Of Motion seeking a dismissal of the Petition based upon a defective rent demand.

Both sides concede that the amount sought in the rent demand for the months of April 2015 through July 2015 is incorrect. The amount of $1700.77 is based upon a lease that the Petitioner deemed renewed for a two period. See Petitioner's Affirmation Of Attorney opposing the Notice Of Motion, paragraph 8 and corresponding footnote 1.

The Petition was noticed to be heard on September 8, 2015. On December 11, 2015 the Respondent moved by Notice Of Motion for leave to submit an Amended Answer and for a dismissal of the proceeding. The Motion was granted to the extent of deeming the Amended Answer served and filed, but denied that part of the Motion seeking dismissal, as untimely. On December 21, 2015 the Petitioner served the Respondent a new Five Day Notice and thereafter served a new Petition and Notice Of Petition. Thereafter, the Petitioner, without leave of the Court, filed the new Five Day Notice and the Petition and Notice Of Petition as an amended pleading. See Amended Petition.

The Petitioner argues in opposition to the Motion To Dismiss, that "since the Respondent filed an amended answer, the Petitioner was then permitted, without leave, to file an amended Petition." See Petitioner's Affirmation Of Attorney, paragraph 12. Further, the Affirmation argues the Petitioner has not served an amended demand, but, was entitled to serve an entirely new demand and an amended Petition. See paragraph 18, supra.

The Court disagrees with the Petitioner's argument. The Five Day Notice that this Petition was predicated upon did not state the proper amount of rent that was due and owing to the Petitioner. Additionally, given the specific facts for this proceeding, it was not a good faith approximation of the rent owed. The demand required rent to be paid for the months of April 2015 through July 2015 at an amount that the Petitioner deemed due based upon a presumption that the Respondent would renew her lease for two years. This amount was not a "good faith approximation" but an amount specifically demanded based upon the deemed renewed increase. The Petitioner had legal remedies for the Respondent's alleged failure to renew her lease, however, those remedies were not pursued. The Petitioner could not demand an amount of rent that the Respondent had not agreed too. "The plaintiff cannot rely on RSC § 2523.5(c)(2) and deem the prior lease renewed solely by virtue of the fact that the defendant remained in the apartment after the expiration of the lease ...". Samson Mgmt., LLC v. Hubert, 92 AD3d 932, 934, 939 N.Y.S.2d 138, 140 (2012). Additionally, the Petitioner may not amend the pleadings more then three months after the Petition was noticed to be heard without leave of court. See CPLR §3025.

"The demand for rent, which is a jurisdictional predicate of a non-payment proceeding, must meet minimum requirements. The demand must inform the tenant of the particular period rent is due and the approximate good faith sum of rent owed for the particular period. (Western Hotels Co., Inc. v. Ramsay, N.Y.L.J., Dec. 20, 1979, p. 10, col. 4 (App. Term, 1st Jud. Depart.); Schwartz v. Weiss-Newell, 87 Misc 2d 558, 386 N.Y.S.2d 191)." Severin v. Rouse, 134 Misc 2d 940, 944, 513 N.Y.S.2d 928, 932 (Civ. Ct. 1987).

The Five Day Notice is defective as it improperly demands the rent for the months of April 2015 through July 2015. This Notice is not subject to amendment. See Chinatown Apartments, Inc. v Chu Cho Lam, 51 NY2d 786, 787 (1980).

Pursuant to the foregoing, the Notice Of Motion is granted and the Petition is dismissed without prejudice.

Dated: March 9, 2016

Hon. Jeannine Baer Kuzniewski, J.H.C.