Opinion
Index No. LT-305306-22/NY Motion Seq Nos. 1 2 NYSCEF Doc. No. 28
01-27-2023
MLG Development Corp, as Net Lessee of the City of New York Petitioner(s) v. Shawn Ginyard Respondent(s)
Unpublished Opinion
DECISION/ORDER
Tracy Ferdinand, Judge
Recitation, as required by CPLR 2219(A), of the papers considered in the review of this Motion to:
Restore and Cross-Motion to serve an amended Answer and Dismiss
PAPERS NUMBERED
Notice of Motion and Affidavits and Exhibits Annexed 1 [NYSCEF 11-19]_
Order to Show Cause and Affidavits Annexed _
Answering Affidavits and Cross-Motion and Affirmation and Exhibits Annexed_2 [NYSCEF 20-23] __
Replying Affidavits and Exhibits _3, 4 [NYSCEF 24-25 & 27]_
Stipulations ____
Other ____
Upon the foregoing cited papers, the Decision/Order in these Motions is as follows:
Respondent initially appeared unrepresented in this summary non-payment proceeding and interposed and answer asserting general denial. After respondent secured counsel, the proceeding was administratively stayed due to a pending ERAP application. The ERAP application was denied due to respondent having already been approved for 15 months of arrears on a prior application.
Petitioner now moves to vacate the ERAP stay and restore to the calendar and to amend the Petition to date. Respondent, by counsel, does not oppose vacating the ERAP stay but opposes amendment of the petition and cross-moves for leave to serve and file and amended answer and to dismiss the petition on several grounds including a defective rent demand and failure to comply with the requirements of MDL §302.
Petitioner opposes the request for leave to file an amended answer on the grounds that the defenses asserted lack merit.
Leave to amend is freely given absent prejudice or surprise unless it can be shown that the defense or counterclaim is "palpably insufficient or devoid of merit". MBIA Ins. Corp, v Greystone & Co., Inc. 74 A.D.3d 499 [1st Dept 2010], Petitioner's arguments notwithstanding, neither of respondent's defenses are meritless. While the petition, and any misstatements therein, are capable of amendment, the petition here clearly states that the premises are NOT a multiple dwelling. This is counter to petitioner's own opposition which asserts that the premises ARE a multiple dwelling and that the building is properly registered, and petitioner has not yet moved to amend.
A predicate notice, however, is incapable of amendment and an improper demand may serve as a basis for dismissal. (Chinatown Apts Inc. v Chu Cho Lam, 51 N.Y.2d 786 [1980]).
"[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 Mise 2d 558, 561, 386 N.Y.S.2d 191 [1976].)" 542 Holding Corp, v Prince Fashions, Inc., 46 A.D.3d 309, 310 [1st Dept 2007].
Here the rent demand dated March 16, 2022, demands payment in the amount of $784.00 per month for the months of April 2021 through March 2022, with a balance of $647.40 from March 2021. Contrary to the petitioner's position, and as is shown in 1 the rent history annexed to the moving papers as Exhibit "E" petitioner received and credited an ERAP payment of $11,196.90 on October 13, 2021, well before the rent demand was prepared and served. The ERAP award letter annexed to the respondent's moving papers as Exhibit "H" show that the ERAP payment covered March 2020 through February 2021 and July through September 2021. July, August and September 2021 were paid by the ERAP. Earmarked payments must be applied as designated by the payor. (See, Snide v Larrow, 62 N.Y.2d 633 [1984]; ELG 1275 LLC v Reyes, 53 Mise 3d 1209[A], 2016 NY Slip Op 51489[U] [Civ Ct, Bronx County 2016]).
Accordingly, and in light of the above, the rent demand can not be said to be proper regarding the time period or the amount.
Accordingly, respondent's cross-motion for leave to serve and file an Amended Answer is granted and the proposed amended Answer annexed to the papers is deemed served and filed and upon filing, respondent's motion to dismiss the petition is granted. This is without prejudice to respondent's counterclaim to attorney's fees which may be asserted in a subsequent proceeding.
Petitioner's motion to restore is denied.
This constitutes the Decision and Order of this Court. 2