LLC v. JUAN MENDEZ (2026)

On or about March 2, 2026, the petitioner, Westchester Industrial Complex, LLC. filed a petition for a non-payment proceeding seeking a judgment of eviction giving possession of 3199 Albany Post Road, Suite 132A, Buchanan, New York (hereinafter "subject premises") back to Petitioner. The petition is also seeking a judgment in the amount of $68,136.61 representing rent arrears, added rent, cost, disbursements, and attorney fees. The subject premises is a commercial property.

Attached as exhibits to the petition were an unsigned copy of the lease for the subject premises; a five-day rent demand, dated January 15, 2026; and a 14-day rent demand, dated January 15, 2026. Both rent demands specifically state the amounts due for each month from February 2025 through January 2026.

Procedural History

On or about March 2, 2026, the parties appeared before this Court and Petitioner made an oral motion to remove "John Does" 1-5 and "Janes Does" 1-5 from the caption as no other tenants were identified as being in possession of the subject premises. Respondents did not oppose the motion. The Court granted the motion and adjourned the matter for the attorneys to attempt to resolve the matter by stipulation. Case was adjourned to March 16, 2026.

On March 16, 2026, both sides again appeared, and Respondents' attorney filed a Notice of Appearance. Case was adjourned for Respondents to interpose an Answer and for continued settlement discussions. Case was adjourned to April 13, 2026.

On April 13, 2026, both sides appeared and Respondents' attorney filed an Answer with Counterclaims and indicated that they were going to file a motion to dismiss the petition. Respondents argued that the petition was jurisdictionally defective. The Court set a motion schedule as follows: Respondents to file their motion by May 4, 2026, Petitioner to file an opposition by May 18, 2026; Respondents reply was due by June 1, 2026, and the Court's decision was scheduled for June 29, 2026.

On June 29, 2026, the Court had not yet rendered a decision, and the matter was adjourned to July 13, 2026. On July 13, 2026, the parties appeared and the Petitioner made an oral motion to amend the petition to include additional rent arrears that had accumulated since the commencement of the summary proceeding. Respondents opposed the motion arguing that Petitioner failed to provide any proof of the additional outstanding rent arrears. The Court reserved it's decision.

In accordance with CPLR 2219, the Court considered the following documents filed with the Court: Respondant's Notice of Motion, Attorney Supporting Affirmation with attached exhibits, Petitioners' Notice of Cross Motion and Affirmation in Opposition to Respondents' Motion to Dismiss, Respondents' Reply Affirmation and Opposition to Cross Motion to Amend, and a letter from Respondents' attorney, dated June 25, 2026.¹

Respondents argue that the summary proceeding seeking a warrant of eviction and judgment for rent arrears is defective because the petition seeks rent that does not conform with the rent demand. Specifically, the rent demand delineates rent arrears, added rent (added fees, taxes and penalties) from February 2025 through January 2026. The petition seeks those items and the rent arrears for the month of February 2026, which was allegedly unpaid at the time of the filing of the petition. Petitioner posits that dismissal of the petition is unwarranted because the rent demand is valid and that the correct remedy is to allow Petitioner to amend the petition nunc pro tunc to conform with the rent demand.

Analysis

In a summary proceeding seeking possession of either a residential or commercial property, the tenants must be served with a predicate notice commonly called a "rent demand" or a "predicate notice" (see Real Property Actions and Proceedings Law "RPAPL" § 711[2], Greenport Presv., L.P. v. Heyward, 160 NYS3d 734 [App Term, 2d, 11 & 13th Jud Dists, 2021]; Oakwood Terr. Hous. Corp. v. Monk, 36 NYS3d 48 [App Term, 2d, 9th & 10th Jud Dists 1995]). The rent demand must be specific enough for the tenant to be apprised of the grounds for an eviction (see Great Jones St. Realty Corp v. Chimsanthia, 127 NYS 3d 689 [App Term, 1d 2020]; 888 E. 96th St. LLC v. Hargrove, 111 NYS3d 494 [App Term, 2d, 11th & 13th Jud Dists 2018]).

This rent demand must be in writing and oral demands for rent arrears are no longer acceptable. (RPAPL § 711[2], Statewide Housing Stability and Tenant Protection Act of 2019 "HSTPA", L. 2019, c 36, Part M, § 12). Additionally, the rent demand must include both any rent and added rent due and a deadline to pay the rent arrears or surrender possession of the property (RPAPL § 711[2], Patchogue Assoc. v. Sears, Roebuck & Co., 37 Misc 3d 1, 951 NYS2d 314 [App Term, 2d, 9th & 10th Jud Dists 2012]; Greenport Presv., L.P. v. Heyward, 160 NYS3d 734 [App Term, 2d, 11 & 13th Jud Dists, 2021]). Most importantly, a rent demand may not be amended (Chinatown Apts, Inc. v. Chu Cho Lam, 51 NYS2d 786 [1980]).

In the case at bar, Respondents do not claim that the rent demand is defective. Instead, Respondents argue that since the Notice of Petition and the Petition seeks rent arrears beyond those listed in the rent demand, the petition is defective. In support of its position, Respondents urge the Court to rely upon RCPL Landmark v. Chasm Lake Management Serv, LLC, 32 Misc 3d 405, 926 NYS2d 267, 2011 NY Slip Op 21177 (2011). The Civil Court of the City of New York dismissed a summary proceeding because the petition was seeking rent that was never demanded in the rent demand. In dismissing the petition, the Court held that an additional rent demand is necessary to allow the amending of the petition to seek additional rent arrears prior to trial. Id at 408 (internal citations omitted).

Petitioner argues that RCPL Landmark is not binding on this Court and urges the Court to instead follow the holding of 36 Main Realty Corp. v Wang Law Office, PLLC, 49 Misc 3d 51, 19 NYS3d 654, 2015 NY Slip Op 25279 (2015). In this case, the trial Court allowed the petitioner to amend the petition for a summary proceeding of a commercial property to seek rent not previously demanded in the rent demand. After trial, the Court awarded possession of the property back to petitioner. It also awarded a money judgment that included rent arrears that was not listed in the rent demand. The tenant appealed and argued that the trial court erred in allowing the amendment to the petition because a rent demand for the additional rent had not been made. In rejecting that argument, the Court stated, "we find no basis in the law to require that a landlord make an additional rent demand following the institution of a nonpayment proceeding in order to amend a petition with leave of the Court at trial " Id at 53.

The Court in 36 Main Realty Corp. also stated that the statutory source of the right to recover rent arrears in a nonpayment proceeding are RPALPL § 741 (5) and § 747 (4) and "[t]hese provisions do not explicitly require a predicate demand for either an award of rent or for use and occupancy." Id at 53. The Court recognized that the " 'primary purpose of a nonpayment summary proceeding is to recover possession of the subject premises' " Id. at 53 (internal citations omitted). The Court also reasoned that since the CPLR and interpreting caselaw all allow leave to amend pleadings "freely" absent any prejudice to the opposing party, the Court held that a nonpayment petition may be amended prior to trial without a new rent demand as long as the underlying predicate rent demand was valid. Id at 54.

Furthermore, in a case factually similar to this case, 265 East 66th LLC and 265 East Hamilton LLC v. Jason Silber, et al, 86 Misc 3d 1242(A)(2025), the Court allowed the petitioner to amend the petition nunc pro tunc to remove the rent sought in the petition that was not demanded in the predicate notice. The Court reasoned that since leave to amend the pleadings should be freely granted pursuant to CPLR 3025 (b) absent prejudice to the opposing party, and predicate notices could not be amended, the proper remedy was to allow the petitioner to amend the petition to conform with the predicate notice Id. at 1242(A). This Court finds this holding persuasive.

This Court holds that both the 5-day rent demand and the 14-day rent demand were valid as they were specific enough to give the tenant notice of the rent owned thus establishing the grounds for an eviction and "the necessary information to enable the tenant to frame a defense " (Broadhurst Willows Apts. V. Wooten, 143 NYS3d 518 [NY Civ Ct NY Cnty 2011]). The rent demand in this case also included a date by which either payment of the rent arrears was due or to surrender the possession of the subject premises. Thus, since Respondents failed to articulate any prejudice they would suffer in allowing the petitioner to amend the petition to conform with the rent demand, and the Court finds no such prejudice in the record, the Court grants Petitioners' cross motion to amend the petition nunc pro tunc to conform with the rent demand, thus Respondents' motion to dismiss the petition is denied.

All other arguments raised on these motions and evidence submitted by the parties in connection thereto have been considered by this court notwithstanding the specific absence of reference thereto.

Conclusion

Accordingly, it is,

ORDERED and ADJUDGED, that the respondents' motion to dismiss the petition is DENIED; and it is further

ORDERED and ADJUDGED, that the petitioner's cross motion seeking to amend the petition nunc pro tunc to conform with the rent demand is GRANTED; and it is further

ORDERED and ADJUDGED that petitioner's oral motion, made during the appearance on July 13, 2026, to further amend the petition to include newly accrued rent arrears is DENIED without prejudice to renew before trial.

DATED: Town of Cortlandt

August 24, 2026

HON. LIVIA RODRIGUEZ

Town Justice

Town of Cortlandt

FOOTNOTES

1.   Town and Village Courts are not e-file Courts, therefore the documents referred to herein were not filed in the New York State Court Electronic Filing System (NYSCEF).

Livia Rodriguez, J.