Opinion
L& T Index No. 348311-23
10-08-2024
Anderson A-G LLC, Petitioner-Landlord, v. Yelitza Tavarez, Respondent-Tenant.
Unpublished Opinion
Amira Hassan, J.
Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion:
Papers Numbered NYSCEF Doc. No.
Motion/Order to Show Cause/Exhibits in Support 117, 18-20
Affirmation/Affidavit in Opposition 2 22
Affirmation/Affidavit in Reply/Exhibits in Support 3 23, 24-25
NYSCEF Court File 1 to 25
Upon the foregoing cited papers, the Decision/Order on Respondent's motion (Seq. 01) is as follows:
This nonpayment proceeding was commenced by Notice of Petition and Petition dated November 30, 2023, seeking possession and unpaid rental arrears for the subject rent stabilized premises located at 1191 Anderson Avenue, Apt. 6-D, Bronx, New York 10452. The claim is predicated on a Fourteen (14) Day Rent Demand, incorporated in the Petition, where the sum of $7,632.50 was owed from March 2023 through May 2023.
Yelitza Tavarez ("Respondent") filed an answer in person on January 1, 2024, and the matter was scheduled to be heard in the intake part on March 20, 2024. Respondent thereafter retained counsel and Bronx Legal Services e-filed a notice of appearance on April 29, 2024. The case was adjourned several times, mostly on consent, for all purposes including pre-trial conference or settlement. On August 20, 2024, the case was adjourned for the completion of motion practice. By counsel, Respondent filed the instant motion (Seq. 01) seeking leave to amend her answer and dismissal pursuant to CPLR 3211(a)(1) and (a)(7). Petitioner filed opposition and Respondent filed reply. The Court attempted to resolve the case on the merits, but the parties could not come to an agreement. After argument, decision on the motion was reserved on October 7, 2024.
Respondent's motion seeks an order dismissing the proceeding based on Petitioner's reliance on a defective rent demand. Specifically, a rent demand which fails to accurately state the correct monthly rent and period for which rent was due cannot serve as the basis for a summary proceeding. Oberlies v. Oliva, 45 Misc.2d 533 (Appellate Term, 1st Dep't. 1964). Here, Petitioner allegedly failed to apply public assistance shelter payments of $283.00 per month toward the full monthly rent of $1,854.40. See, 3463 Third Ave. Realty LLC v. Vasquez, 59 Misc.3d 1223(A) (Civ. Ct. Bronx Co. 2017). In support, Respondent attaches a public assistance "printout" and certified copies of cashed Human Resources Administration ("HRA") checks. See, NYSCEF Doc. No. 19 __Exhibit B and No. 20 __ Exhibit C. The pertinent checks are two sets of semi-monthly payments of $141.50 issued in April 2023 and May 2023. It is undisputed that the rent demand seeks the full contract rent for April and May in addition to a small balance of $214.90 for March 2023.
In opposition, Petitioner argues that the standard of adequacy for a notice such as a rent demand is one of "reasonableness in view of all attendant circumstances." Hughes v. Lenox Hill Hosp., 226 A.D.2d 4 (Appellate Division, 1st Dep't 1996). Here, Petitioner argues the Respondent failed to prove the checks were actually "earmarked" and Petitioner applied the payments reasonably. Even assuming arguendo that the HRA checks were earmarked, Petitioner urges that the purported earmarked payments only account for 15% of the total amount due and add up to a de minimis "minor inaccuracy." (Citing to persuasive authority from a lower court in the Second Department , Ciampa U.S. LLC v. Satterfield, 79 Misc.3d 1227 (A) [Civ. Ct. Queens Co. 2023]). In Reply, Respondent uses one of Petitioner's own arguments against them. Respondent submits that "direction" as to how a payment ought to be applied may be "evidence by circumstances as well as words" and that here, it was evident that the payments were earmarked. Tayloe v. T. & S. Sandiford, 20 U.S. 13 (1822); A & E Tiebout Realty, LLC v. Johnson, 23 Misc.3d 1112 (A) (Civ. Ct. Bronx Co. 2009). The Court notes that neither side submitted any affidavits from anyone with personal knowledge as to the payment history between the parties.
The pleadings in a motion to dismiss pursuant to CPLR § 3211 are afforded a liberal construction. CPLR § 3206. The facts alleged on the complaint or petition must be accepted as true and afford the petitioner the benefit of every possible inference and determine only whether the facts alleged fit within any cognizable legal theory. Leon v. Martinez, 84 N.Y.2d 83 (1994) ; Fishberger v. Voss, 51 A.D.3d 627 (2nd Dep't 2008 ). Dismissal is warranted only if the documentary evidence submitted conclusively establish a defense to the asserted claim as a matter of law. An accurate rent demand is a prerequisite to maintaining a nonpayment proceeding. RPAPL § 711(2). The demand must fairly afford the tenant actual notice of the alleged amount due and of the period for which such claim is made. 542 Holding Corp. v. Prince Fashions Inc., 46 A.D.3d 309 (1st Dep't 2007). Predicate notices, such as a rent demand, are unamendable and therefore a defect mandates dismissal. Chinatown Apartments, Inc. v. Chu Cho Lam, 72 A.D.2d 532 (Appellate Division, 1st Dep't 1979).
Generally, earmarked payments must be applied to the respective periods for which they were intended. Turning to the actual checks cashed in this case, there is no visible memo section or writing of any kind delineating the period to which the payment must be applied. In fact, the only semblance of a date is a single date of issuance. Therefore, as deliberated above, if Respondent fails to direct the "creditor" landlord as to how they want the payments to be applied, a landlord may feel free to apply payments to rent as they see fit. While Respondent does show, as per the public assistance printout, that the shelter checks in question were intended by the issuing agency to cover rent for a specific period of a month, this printout is only accessible to Respondent and their HRA caseworkers. The printout does not prove that Petitioner was on notice of an earmarking. Whether or not based on the parties' history and conduct over the years, Petitioner should have known that said checks can only be applied to specific months, that much is not apparent from the record or motion papers before the court.
The Court does find the rent demand to be gravely defective because the sum of the months listed do not actually amount to a good faith estimate of what Respondent had to pay to prevent litigation, as is the purpose of a rent demand. JDM Washington St., LLC v. 90 Washington Rest. Assocs., LLC, 36 Misc.3d 769 (Civ. Ct. NY Co. 2012); 542 Holding Corp. v. Prince Fashions, Inc., 46 A.D.3d 309 (Appellate Division, 1st Dep't 2007). Where there is a discrepancy between a rent ledger and a rent demand, "the latter was not prepared in good faith." Id. Here, as tangentially pointed out by Respondent, Petitioner demanded that the sum of $7,632.50 be paid. However, as per Petitioner's own ledger and accounting, Respondent only owed $3,923.70 as of May 2023, almost half of what Petitioner demanded be paid. See, NYSCEF Doc. No. 24 - Exhibit A. As such, a "demand of an amount more than what is actually owed... renders the demand defective" e.g., 90 Washington Rest. Assocs., LLC. Moreover, the rent demand contains two different dates. At the very top it is dated May 28, 2023, and at the bottom, next to Petitioner's agent's signature, it is dated November 22, 2023. It remains undisputed that shelter checks continued to be cashed before and between either date, consequently the overall balance of arrears should have accounted for this. For the aforementioned reasons, the notice fails to satisfy Petitioner's own test of reasonableness in view of all attendant circumstances.
Accordingly, it is SO ORDERED that Respondent's motion (Seq. 01) is granted for the reasons stated therein, and it is further ORDERED that this proceeding be dismissed without prejudice. Any and all other relief sought in the motion is denied as moot.
Respondent is directed to serve and file a copy of this Decision/Order along with a notice of entry on Petitioner and upload proof of same to NYSCEF within three (3) days from the date of this Decision/Order.
This constitutes the Decision/Order of the court. A copy of same to be uploaded to NYSCEF.