Opinion
72550/2017
04-30-2018
3463 THIRD AVENUE REALTY LLC, Petitioner, v. David VASQUEZ & Raisa Medina, Respondent.
Heiberger & Associates, P.C., for Petitioner. Mobilization for Justice (Leah Goodridge of counsel), for Respondent.
Heiberger & Associates, P.C., for Petitioner.
Mobilization for Justice (Leah Goodridge of counsel), for Respondent.
Karen May Bacdayan, J.
Recitation, as required by C.P.L.R. § 2219(a), of the papers considered in review of this motion.
Papers Numbered
Notice of Motion and Affidavits Annexed 1
Order to Show Cause and Affidavits Annexed Answering Affidavits 2
Replying Affidavits
Exhibits
Other
Background and Procedural History
This is a nonpayment summary eviction proceeding. Respondent, Raisa Medina, has moved to dismiss the proceeding pursuant to CPLR 3211(a)(2) and 3211(a)(7) for failure to state a cause of action in that the predicate rent demand is defective. Respondent argues that the demand does not accurately allege periods for which rent is owed, and does not accurately allege the rent owed for those periods. Petitioner opposes Respondent's motion on the basis that the amount demanded was a good faith approximation of the amount actually due at the time the rent demand was served, and that it was therefore sufficient to enable Respondent to avoid litigation.
The predicate rent demand, dated November 15, 2017 and served on November 24, 2017, alleges nonpayment of $95.45 for June 2017, and the monthly rent of $979.45 for the months of July 2017 through November 2017 with total rent arrears for that period of $4,992.70. Thereafter, Petition served Respondent with a Notice of Petition and Petition dated November 30, 2017. Respondent answered December 21, 2017 and raised the following defenses to the Petition: a general denial, breach of the Warranty of Habitability, and "the rent or a part of the rent, has already been paid to the Petitioner."
The defense of defective rent demand is covered by the "General Denial" in Respondent's original answer. (Second & E 82 Realty LLC v. 82nd St Gily Corp , 192 Misc 2d 55, 57, 745 NYS2d 37, 374 [Civ Ct NY Co 2002].)
Regarding the rent demand, Petitioner's rent ledger (attached to its opposition papers at Exhibit B) shows that in June 2017 it credited to Respondent's account three Public Assistance ("PA") shelter checks in the amount of $107.50 each, and two personal checks from Respondent in the amount of $250.00 and $300.00, respectively; in July 2017, Petitioner's rent ledger shows that it credited two PA shelter checks in the amount of $107.50 each; in August 2017 Petitioner credited two PA shelter checks in the amount of $107.50 each and two personal checks from Respondent in the amount of $200.00 and $275.00, respectively; in September 2017, Petitioner credited one PA shelter check in the amount of $107.50, and two personal checks from Respondent in the amount of $250.00 and $200.00, respectively; in October 2017, Petitioner credited two PA shelter checks in the amount of $107.50 each, and one personal check from Respondent in the amount of $300.00; and in November 2017, Petitioner credited two PA shelter checks in the amount of $107.50 each and three personal checks from Respondent in the amounts of $250.00, $250.00, and $200.00, respectively. The total paid by the Respondent during the time period covered by the predicate rent demand is $3,665.00. The payments made on Respondent's behalf are supported by certified copies of cashed shelter checks annexed at her motion at Exhibit G, and by the Petitioner's own rent ledger.
Respondent does not attach copies of her personal checks that were credited in the Petitioner's rent ledger.
Discussion
"A proper demand for rent must fairly afford the tenant, at least, actual notice of the alleged amount due and of the period for which such claim is made. At a minimum, the landlord or his agent should clearly inform the tenant of the particular period for which a rent payment is allegedly in default and of the approximate good faith sum of rent assertedly due for each such period." ( Schwartz v. Weiss–Newell (87 Misc 2d 558, 561, 386 NYS2d 191 [Civ Ct NY Co 1976] ), quoted in 542 Holding Corp v. Prince Fashions, Inc (46 AD3d 309, 848 NYS2d 37 [1st Dep't 2007].) This is consistent with one of the purposes of a rent demand, which is to inform the tenant how much he need pay to avoid litigation. (Nelson v. Kaufman , NYLJ, Nov. 24, 1978 at 12, col. 1 [App Term, 1st Dept 1978].) A proper predicate rent demand is a condition precedent to commencement of a nonpayment proceeding. The rent demand is not a pleading and cannot be amended nunc pro tunc . A nonpayment proceeding based on a defective rent demand must be dismissed, without prejudice. ( Chinatown Apts v. Chu Cho Lam (51 NY2d 786, 788, 412 NE2d 1312, 1314, 433 NYS2d 86 [1980] ); JD Realty Assocs v. Jorrin (166 Misc 2d 175, 632 NYS2d 441 [Civ Ct NY Co 1995], as mod on app, 169 Misc 2d 292, 650 NYS2d 67 [App Term 1st Dep't 1996] ); Vartarian v. Brady (184 Misc 2d 333, 707 NYS2d 285 [Civ Ct NY Co 1999].)
With respect to how payments are applied to debts, "the general rule is that the debtor may direct application of his payments, but if he fails to do so, then the creditor is permitted to apply the payments as he sees fit." ( Snide v. Larrow , 62 NY2d 633, 634 [1984].) Where a tenant earmarks his check to as to indicate the period for which the payment is intended, a landlord is required to apply the payment to that period. (See Greenbrier Garden Apts. v. Eustache , 50 Misc 3d 142 [A], 2016 NY Slip Op 50210[U] [App Term, 9th & 10th Jud Dists 2016], 134–38 Maple St. Realty Corp. v. Medina , 3 Misc 3d 134[A], 2004 NY Slip Op 50469[U] [App Term, 2d & 1st Jud Dists 2004].) However, "a direction as to how a payment is to be applied may be evidenced by circumstances as well as words. A payment may be attended by circumstances which demonstrate its application as completely as words could demonstrate it." ( L & T East 22 Realty Co. v. Earle , 192 Misc 2d 75, 76 [App Term, 2d Dept 2002] [internal citations omitted]; see also A & E Tiebout Realty, LLC v. Johnson , 23 Misc 3d 1112[A], 2009 NY Slip Op 50715[U] [Civ Ct, Bronx Co. 2009].)
Petitioner's attorney acknowledged during oral argument that Petitioner knew at the time the demand was served that Respondent received shelter payments semi-monthly from Public Assistance, and in any case it is clear from Petitioner's rent ledger that for years it has been its practice to accept and negotiate semi-monthly shelter checks issued by Public Assistance on behalf of Respondent each month. The rent demand does not reflect this practice, or any of the payments made by Public Assistance or by Respondent during the period covered by the demand, even though these payments were credited by Petitioner in its rent ledger for the month in which they were made. Rather, Petitioner states without further explanation that the inconsistency in the rent demand is "a matter of accounting and does not affect the good faith approximation of the arrears that Respondents must tender to avoid litigation." (Petitioner affidavit in opposition ¶ 7.) Under the circumstances, the Court finds that Respondent intended her payments to be applied to the month in which they were made, and that Petitioner's long-standing practice of crediting payments on its rent ledger to the month in which they were received evinces this intention on the part of Petitioner as well.
Neither Petitioner nor its attorney explain which method of accounting was used to issue the rent demand. Moreover, nothing in the rent ledger would lead Respondent to believe that Petitioner used anything but a monthly accounting of rent due and rent paid; nor is there any indication that Petitioner put Respondent on notice that a different accounting method was used to prepare the demand.
The period in question is July 2017 through November 2017. According to Petitioner's own rent ledger, subtracting the payments made from the rent accrued, the amount due for that period would be $3,665.00 less. In this way, the Petitioner's demand failed to inform Respondent of the "particular period for which a rent payment is allegedly in default and of the approximate good faith sum of rent assertedly due for each such period ." (emphasis added) ( 542 Holding Corp v. Prince Fashions, Inc (46 AD3d 309, 311, 848 NYS2d 37 [1st Dep't 2007].) This was not only confusing to Respondent (Medina affidavit in support at ¶ 6) but would also impede her ability to avoid litigation, an important purpose of the rent demand. (Nelson v. Kaufman , NYLJ, Nov. 24, 1978 at 12, col. 1 [App Term, 1st Dept 1978].)
Respondent states that the rent demand confused her because she knew that during the period covered by the rent demand, payments had been made on her behalf by Public Assistance, and that she had made several payments to the landlord from her own funds. (Medina affidavit in support at ¶¶ 6, 7.) She further states that "it was very difficult for [her] to try to figure out how much money was owed," and that she "does not think that this three-day rent demand gave [her] an adequate opportunity to really avoid this eviction case." (Medina affidavit in support at ¶¶ 8, 9.).
Respondent, a recipient of Public Assistance, is not in a position to pay more from her limited income than she is able to discern she owes. In addition, were Respondent to have taken the rent demand to Public Assistance for a "one-shot deal", Public Assistance would likely not have processed a one-shot deal based on the rent demand because the predicate notice demanded rent for periods during which Public Assistance had already made payments. For this very reason, it is common practice for landlords to give tenants their monthly rent ledger which sets forth all payments made by the tenant, or on behalf of the tenant, once the parties appear in court. As one court has observed, "It is not uncommon for tenants to come to court ... with receipts in hand to show payment for the months in the petition, only to be told that the actual arrears are for a different period of time." ( Shimon Realty, Inc. v. Stosko , 2002 WL 34731014 [N.Y.City Civ.Ct.].)
Petitioner puts much emphasis on language in case law stating that a rent demand must contain a good faith approximation of the rent due. Petitioner's attorney argues that "[at] the moment when the rent demand was issued, Respondents did in fact owe $4,992.70." Petitioner cites to Cypress Court Associates v. McLauren , 33 Misc 3d 1203(A), 938 NYS2d 226, for this proposition. Ironically, the McLauren case bolsters Respondent's argument. The Petitioner in McLauren , as in this case, received semi-monthly shelter payments from Public Assistance on behalf of the tenant. In dismissing the proceeding because the rent demand was defective, the court stated, "the fact that the rent demand fails to include any information from which it can be gleaned that petitioner gave credit for DSS payments and applied those payments to the months intended calls into question whether the petitioner has made a good faith approximation of the rents due." ( McLauren , 33 Misc 3d 1203[A] *2.) Petitioner in this case appears to have simply taken the amount assertedly due to date, and divide it by the monthly rent in order to arrive at the breakdown in the rent demand. Prior to preparing the predicate rent demand or asking its attorney to do so, Petitioner could have consulted with the rent ledger that was provided to Respondent after she received the rent demand. Had Petitioner done this, it would have given Respondent a meaningful opportunity to avoid the instant litigation.
Accordingly, it is hereby ordered that:
Respondent's motion seeking to dismiss the Petition based on defective rent demand is granted. The petition is dismissed.
This constitutes the decision and order of the court.