Opinion
51383/06.
Decided March 1, 2006.
Respondent moves for an order pursuant to CPLR 3212 (b) dismissing the petition. DISCUSSION
In determining this motion, the court reviewed the following documents: 1) respondent's motion to dismiss, 2) petitioner's affidavit in opposition and, 3) respondent's affirmation in support of the motion.
Respondent's motion is granted. In a summary non-payment proceeding the landlord is required to make an oral demand for the rent due upon the tenant or serve upon the tenant a three day notice for rent as a predicate for the commencement of the proceeding (RPAPL 711; 45th Broadway Assoc. V. Skyline Enterprises, 144 Misc 2d 714). The evidence supports the finding that landlord failed to make a clear and unequivocal demand for rent in a specified amount, as required by statute. Thus, landlord failed to establish a predicate requirement for a summary proceeding ( Matter of Salvatore Catherine Pepe v. Miller Miller Consulting Actuaries, 221 AD2d 545).
The petition is also dismissed due to the fact that the name of the landlord on the lease differs from the name of the landlord on the petition. A tenant is entitled to know who brings the proceeding. While this defect is amendable ( Jackson v. New York City Auth., 88 Misc 2d 121), no motion to amend was made. Because the dismissal is based on the above two reasons, the court does not reach the merits of this proceeding.
CONCLUSION
Respondent's motion to dismiss the petition pursuant to CPLR 3212(b) is granted. This constitutes the decision and order of the court.