Lopez v Guzman-De La Cruz

[*1] Lopez v Guzman-De La Cruz 2020 NY Slip Op 51041(U) Decided on September 11, 2020 Civil Court Of The City Of New York, Bronx County Weissman, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 11, 2020
Civil Court of the City of New York, Bronx County

Maria Lopez, LP, Petitioner,

against

Alice Guzman - De La Cruz Domingo De La Cruz, Respondent.



015814/19



Petitioner was represented by:Stephen Pianoforte, Esq.

Respondent was represented by: Mobilization For Justice, Shirin Dhanani, Esq.
Steven Weissman, J.

Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion:

Papers Numbered

Notice of motion and affidavits annexed

Order to Show Cause and affidavits annexed 1

Answering affidavits 2

Replying affidavits 3

Exhibits

Stipulations

Other

In this summary nonpayment proceeding respondents move for, inter alia, dismissal under CPLR 3211(a)(7) and (a)(8) alleging that the rent demand is fatally defective. The argument is that the demand failed to give credit for payments made, and received by petitioner, for almost every month in the demand, and each payment was designated (called earmarking in caselaw), on its face, for a specific month/year. Petitioner, in its opposition, fails to even deal with this issue.

Petitioner served a rent demand upon respondent dated February 21, 2019 alleging rent in the sum of $2,742.00 was then due and owing, broken down as follows: March, 2018 $68.00; April through November, 2018 at a monthly rent of $224.00; December, 2018 through February, 2019 at a monthly rent of $294.00. In support of their motion respondents presented copies of [*2]the money orders used to pay rent for March, 2018 through August, 2019, except for January, 2019, but the Court is only concerned with the payments received and credited prior to the date of the rent demand (see respondents' exhibit J to moving papers). All of these payments are reflected as received and credited on petitioner's rent history, dated September 2, 2020, and those payments earmarked for March, 2018 through October, 2018 show as having been received before the end of January, 2019, prior to the rent demand being served upon respondents. Those payments received by January, 2019 represent respondents' rent for the months of March, 2018 through October, 2018, yet petitioner's rent demand, in February, 2019, alleges that those months are unpaid. This is 8 of 12 months for which the demand alleges rent is unpaid, thus 67% of the rent demand was clearly incorrect when the demand was prepared and served.

Under CPLR 3211(a)(7) a party may move for dismissal of an action on the ground that the pleadings fail to state a cause of action. On such a motion the pleadings are to be given a liberal construction and the Court's inquiry is whether the proponent of the pleading has a cause of action, not if he has stated one (see the unpublished decision Bronxdale Manor, LLC v. Matias, L & T 51588/18, Civ Ct, Bx Co, 2019, Garland, J.).

RPAPL 741(4) requires that the petition state the facts upon which the proceeding is based, and, it is settled law that a proper rent demand is a predicate to the commencement of a nonpayment proceeding, RPAPL 711(2). Such demand must adequately inform the tenant of the particular periods for which rent payments are allegedly owed and the approximate good faith amount of rent due for each such period (Bronxdale Manor, supra [internal citations and punctuation omitted]).

Here, petitioner claims rent was due for March, 2018 through October, 2018 at $224.00 per month, despite knowing that those months were, in fact, paid in full by respondent's earmarked, and credited, payments as reflected on petitioner's rent history. And, as stated above, each of respondents' rent payments were clearly earmarked for the month(s) and year to which they were to be applied. It is accepted law that payments made and earmarked for a specific time period, must be applied as so designated by the payor, see Foothill Terrace Associates v. Shannon, 1999 NY Misc Lexis 729 (AT 2nd Dept, 1999), Kew Realty v. Charles, 26 HCR 336A, NYLJ 6/3/98, 27:2 (AT 2nd & 11th Dept, 1998), Snide v. Larrow, 62 NY2d 633, 476 NYS2d 112, 1984 NY Lexis 4259 (CANY, 1984), [The general rule is that the debtor may direct the application of his payments ....]. Since petitioner, in its rent demand, clearly demanded rent for months that had been fully paid prior to the preparation and service of said rent demand, the rent demand is defective on its face and not in compliance with statute and caselaw. Respondents' motion is granted, the proceeding is dismissed without prejudice to renewal upon proper papers, the judgment and warrant are vacated. The balance of respondent's motion is denied as moot.

This is the decision and order of the Court. Copies are being emailed to both sides.

Dated: September 11, 2020

Bronx, New York

STEVEN WEISSMAN, JHC