FLF LLC v. IVORY (2022)

Parties, Claim, Trial

Petitioner filed the instant nonpayment summary proceeding on May 31, 2022, requesting “that the Court: a. Grant the Petitioner an immediate Order and Warrant of Eviction removing Respondent from the premises and placing the Petitioner in possession thereof; b. Grant the Petitioner Judgment against the Respondent for the sum of $1,150.00 for rent due and owing from April 1, 2022 through May 1, 2022 as stated above, plus costs and disbursements of this action.; c. Grant Petitioner such other and further relief as to this Court may seem just and proper.”

Facts

The matter was adjourned several times for the parties to obtain counsel and to report on the pending ERAP payments. At the most recent court appearance on September 22, 2022, the parties agreed that ERAP had paid Petitioner for the months of April, May, June, and July, 2022. For some reason ERAP did not pay for the months of August and September. It seems the Respondent appealed this decision.

This Court noted that the petition only requested payment for past rent — not prospective rent. Counsel for the Respondent wanted to have the case dismissed and counsel for the Petitioner wanted an opportunity to amend his petition to seek prospective rent. This Court gave the parties until October 6, 2022, to submit written memoranda on these issues. This Court has received nothing from the parties.

Law

“In an action premised on a tenant defaulting in the payment of rent, payment to the landlord of the full amount of rent due, when such payment is made at any time prior to the hearing on the petition, shall be accepted by the landlord and renders moot the grounds on which the special proceeding was commenced” (Real Property Law § 731 [4]).

Discussion

In this case, the Petitioner received not only payments for the months of April and May that he asked for in his petition, he also received the benefit of payment for the months of June and July without having to file a new petition. The Petitioner could have — but did not — request prospective rent in his petition (see Real Property Law § 741). The Petitioner has not submitted legal justification for his request for an opportunity to amend his petition. In any event, even if the Court were to grant such an application, “such a request must be predicated upon an additional demand for the subsequently accruing rent” (Walsam Fifth Ave. Development Co. v Lions Gate Capital Corp., 163 Misc 2d 1071, 1074 [Civ Ct, NY County 1995], citing (1587 Broadway Rest. Corp. v Magic Pyramid, NYLJ, Dec. 19, 1979, at 10, col 2; cf., C.F. Monroe, Inc. v Nemeth, NYLJ, Oct. 25, 1994, at 25, col 1 [App Term, 1st Dept] [where an amendment to add rents through the date of trial was allowed, but the court did not state whether a rent demand had been made for those rents]).

Order

Therefore, it is hereby ORDERED:

1. The petition is hereby dismissed with prejudice.

This is the Decision and Order of the Court.

Joshua P. Bannister, J.