AK Houses TP4 LLC v Thurman

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AK Houses TP4 LLC v Thurman 2023 NY Slip Op 31491(U) May 3, 2023 Civil Court of the City of New York, New York County Docket Number: Index No. LT-300809-22/HA Judge: Frances A. Ortiz Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. FILED: HARLEM COMMUNITY JUSTICE CENTER - INDEX NO.10:43 LT-300809-22/HA L&T 05/03/2023 AM NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 05/03/2023 Civil Court of the City of New York Index County of New York AK Houses TP4 # LT-300809 -22 lHA ilililililililillIililltilililLll lllit I I lll LLC -against- Petitioner (s ) Decision / Order Davena Thurman; Amef Haynes i "Jane" "Doe" Respondent (s ) JUDGE FRANCES A. ORTIZ, Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion Numbered Papers Order to show Cause/ Notice of Motion and Affidavits /Affi rmations amexed Answering Affi davits/ Amrmations Reply Affi davits/ AIfi rmations Memoranda of Law ],NYSCEF 8- 2NYSCEF 17 18- 22 C)ther Upon the foregoing cited papers, the Decision/ Order on this motion is as follows: This is a non-payment proceeding brought by Petitioner, AK Houses TP4 LLC, against Respondent/Tenant, Davena Thurman, and Respondents/Undertenants, Amel Haynes, John Doe and Jane Doe. The Petition seeks possession of 112-126 East l28th Street, apt. 78, Nerv York, NY 10035 ("the subject premises). Respondent/Tenant, Davena Thurman. appears by counsel. Here, the rent demand is dated May 19,2022 and is addressed to Respondents-Davena Thurman, Amel Haynes, John Doe and Jane Doe r. It states, "PLEASE TAKE NOTICE that you are indebted to the Landlord in the sum of $3199.00 for rent and additional rent, if any." It further indicates, "The sum is detailed in the attached resident ledger (non-HAP), included in this notice and made a part hereof." Upon a close review ofthe ledger, it begins January l, 2019 with a monthly breakdown in rent charges and ends in May 15, 2022. The ledger also contains a charge described as "Agreement #854078060517 Tenant Monthly Repayment" for $50 monthly from January 1,2019 through May 15,2022. Now, Respondent moves to dismiss the Petition pursuant to CPLR S 3211 (a) (1), @, (Z) andlor (B) for failure to state a cause ofaction in that the underlying rent demand fails to state the facts upon which the proceeding is brought in accordance with RPAPL $ 71 I . T\e remaining reliefseeks an order regarding RPAPL $ 2j5-e which was withdrawn by Respodent's counsel at oral argument. Under CPZR $ 3211 (a) (1), a dismissal is wananted only if the documentary evidence I Amel Haynes, John and Jane Doe are identified on the Petition and Notice of Petition as Respondentsfundertenants,- as such it is unclear why Petitioner would be demanding collection ofrent from Undertenants who are not leaseholders and not contractually obligated to pay rent to Petitioner. I 1 of 3 FILED: HARLEM COMMUNITY JUSTICE CENTER NYSCEF DOC. NO. 25 - INDEX NO. LT-300809-22/HA L&T 05/03/2023 10:43 AM RECEIVED NYSCEF: 05/03/2023 submitted conclusively establishes a defense to the asserted claim as a matter of law. Heaney Purdy,29 N.Y.2d 157 (1971). Further, on review of a motion to dismiss a complaint for failure to state a cause of action pursuant to CPLR 53211 (a) (7),the court must accept all ofthe allegations in the complaint as true, and, drawing all inferences from those allegations in the light most favorable to the plaintiffor petitioner, determine whether a cognizable cause ofaction can be discemed therein, not whether one has been properly stated. Leon v. Martinez, 81 N.Y.2d 83 (1991); Rovello v. Orofino Realty Co., 40 N.Y,2d 633 (1976); Dulberg v. Mock, I N.Y.2d 54, 56, (1956).Lastly, the complaint or petition must contain allegations concerning each ofthe material elements necessary to sustain recovery under a viable legal theory. MatlinPatterson ATA Holdings LLC v. Fed. Express Corp., 87 A.D.3d 836, 839 (lst Dep't 2011), leave to appeal denied, 2l N.Y.3d 853 (2013). To state and maintain a cause ofaction for nonpayment ofrent, the petition must state the lacts upon which the proceeding is based. RPAPL S 711(1).Fvther, the predicate rent demand required by RPAPL $ 711(2) must "clearly inform the tenant ofthe particular period for which a rent payment is allegedly in default and the approximate good faith sum ofrent assertedly due for eachsuchperiod;'Schwartzv.Weiss-Newell,87Misc.2d558(CivCt.N.Y.Cly1976). A written demand for rent must notift the tenant of the amount claimed due and the period for which such amount is due. After reviewing the instant rent demand sent to Respondent, the Court concludes that the rent demand does not satisfu RPAPL S 71 1(2) nor the relevant case law. Schwartz v. Weiss-Newell, supra. Here, the Petitioner's rent demand indicated a lump sum amount of$3,199 without even including a monthly and breakdown. This type of rent demand fails to apprise the Respondent of the correct amount due for each month. Respondent is then expected to review the attached rent ledger referred to in the rent demand. Upon a review of that ledger, there is a reference to nonrent items described as "Agreement #854078060517 Tenant Monthly Repayment" for $50 monthly. There is no proofthat those repayment charges are considered as additional rent, entitling Petitioner to seek those charges in the rent demand. Moreover, the Housing Stability and Tenanl Protection Act of2019 prohibits the recovery offees, charges, or penalties. RPAPL { 702. As such, the rent demand is defective as it seeks non-rent items. Also, the rent demand fails to give Respondent notice ofthe actual claims nor does it afford her an opportunity to prepare her defenses to this action. By failing to give her a clear calculation ofthe rental arrears, the Respondent is uninformed as to how she should proceed in order to avoid litigation or if the action is commenced, how to proceed with the case. The instant rent demand is too indefinite and not equivocal enough to serve as a predicate for a summary eviction proceeding. J.D. Realty Assocs. v. Scoullar, 169 Misc.2d292 (AT lst Dep't 1996). Proof of a proper rent demand is a jurisdictional requisite to maintain a summary proceeding for non-payment ofrent. Solcrt'k Estalcs Inc. v. Goodman. 102 Misc.2d 501' (AT Dep't 1979) alf d 78 A.D.2d 512 (1st Dep't 1980). The failure to comply requires dismissal the action. Defects in the predicate notice are not subject to cure by amendment and require dismissal of the proceedin g. Cltinaknt'n Apt.\. N. (:l1u Cln Lam. 51 N.Y 2d 786 (1980) 2 2 of 3 lst of FILED: HARLEM COMMUNITY JUSTICE CENTER - INDEX NO.10:43 LT-300809-22/HA L&T 05/03/2023 AM NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 05/03/2023 As such, here, dismissal is warranted for failure to state a cause of action under CPZR 3211(a)(7) because the rent demand alleges a lump sum ofrent arrears for $3,199 without asserting facts which the proceeding is based under R PAPL S 741(4), contain non-rent items and do not fit within any "cognizable legal theory," under which Respondent could owe said sum. Leon v. Martinez, suprd. After reviewing all motion papers by both sides, the Court dismisses the Petition without prejudice based on an improper rent demand. ORDERED: Respondent's motion to dismiss is granted and the proceeding is dismissed without prejudice. This is the decision and order of this court. Copies of this decision will be uploaded to NYSCEF. Dale:May 3,2023 VZn<2" Judge of the C%- Civit Co A. Ortiz g Part Frances Fracot A Orlts Judgp, Holtohg Cafr 3 3 of 3

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