MHC LLC v. JOHN DOE JANE DOE AND ALL OTHERS (2026)

In this nonpayment summary proceeding respondent has moved for an order dismissing the proceeding herein pursuant to CPLR §§ 3020, 3211 and 3212, and RPAPL §§ 711 (2) and 741; or in the alternative, granting to respondent summary judgment. In support of the motion, respondent has filed a Notice of Motion dated March 16, 2026; the affidavit of respondent Penny Toscano, sworn to on March 16, 2026; the affirmation of Mary Ellen Natale, Esq. dated March 16, 2026, with exhibits annexed thereto; a memorandum of law dated March 16, 2026, and the reply affirmation of Andrew Rodriguez, Esq. dated April 22, 2026. In opposition to the motion, petitioner has submitted the affirmation of Steven C. Teague, Esq. dated April 8, 2026.

Upon reading the foregoing papers, hearing the argument of counsel, and having given due deliberation thereon, the Court decides as follows.

Respondent advances the following bases for dismissal: first, that the predicate 30-day notice upon which this proceeding is based is defective in that it fails to accurately demand the rent owed, as the amount stated is inconsistent with the amount shown as due in respondent's rent ledger, and thus runs afoul of RPAPL § 711 (2); second, that the petition herein is defective as it fails to accurately state the facts upon which this proceeding is based, in contravention of RPAPL § 741; and third, that the petition is not verified by a person with authority to do so in accordance with RPAPL § 741.

Petitioner asserts the following defenses to the motion: first, that the instant motion is barred by the "one motion" rule set-forth in CPLR § 3211 (e); second, the motion cannot be converted to a motion for summary judgment as the requirements for doing so have not been met; third, that in any event there exist triable issues of fact precluding the awarding of summary judgment; fourth, that respondent has not met the evidentiary requirements to support summary judgment; fifth, that the petition was verified by a proper agent of the respondent; sixth, that the respondent's objection to the verification was not raised timely.

The "One Motion" Rule

The Court will first address the threshold issue of whether this motion is barred by the "one motion" rule of CPLR § 3211. Respondent, by notice dated November 7, 2025, previously moved for dismissal pursuant to, inter alia, CPLR § 3211, which motion was denied by this Court by Decision & Order dated February 9, 2026. In that Decision, this Court observed that although not specifically denominated as such, the motion was in essence based upon CPLR § 3211 (a) (10), for failure to join a necessary party within the meaning of CPLR § 1001.

CPLR § 3211 (e) provides, inter alia, as follows:

At any time before service of the responsive pleading is required, a party may move on one or more of the grounds set forth in subdivision (a) of this rule, and no more than one such motion shall be permitted.

The "single motion" rule is strictly observed. McLearn v Cowen & Co., 60 NY2d 686, 468 N.Y.S.2d 461, 455 N.E.2d 1256 (1983); Eustache v. Board of Education of City School District of City of New York, 236 AD3d 590, 231 N.Y.S.3d 104 (1st Dep't. 2025); TRB Acquisitions LLC v. Yedid, 225 AD3d 508, 207 N.Y.S.3d 76 (1st Dept. 2024). The one exception to the rule arises when the compliant in the action is amended after the making of the original dismissal motion. Aerogen LLC v. Tapjets Holdings Inc., 238 AD3d 532, 236 N.Y.S.3d 1 (1st Dept. 2025). In that limited circumstance the courts have allowed for a second dismissal motion. It is also noted that in this case, on February 20, 2026, which was subsequent to the filing of the prior motion, the respondent filed an answer to the petition. The law is equally clear that the filing of an answer after a CPLR 3211 motion has been made does not then allow for a second dismissal motion. Boulay v. Olympic Flame, Inc., 165 AD2d 191 (3rd Dept. 1991).

Accordingly, respondent is precluded from making a second motion to dismiss pursuant to CPLR § 3211, and thus the instant motion, to the extent it is based upon CPLR § 3211 is procedurally improper.

As to Summary Judgment

However, in the present motion respondent has moved, in the alternative, for summary judgment. Initially, petitioner asserts that respondent is improperly seeking to bypass the "one motion" rule by seeking to have this motion "converted" to a summary judgment motion. CPLR § 3211 (c) specifically provides that "[w]hether or not issue has been joined, the court, after adequate notice to the parties, may treat the motion as a motion for summary judgment." Additionally, decisional law has carved out exceptions to the notice requirement, to wit: where (1) one of the parties has requested it, (2) the parties have laid bare their proofs and clearly "charted" a summary judgment course, or, (3) the action exclusively turns on issues of law that have been fully identified and argued by the parties. Mihlovan v. Grozavu, 72 NY2d 506 (1988); Huggins v. Whitney, 239 AD2d 174 (1st Dept. 1997).

In the instant case the respondent has clearly requested, in her notice of motion, that this motion be treated "in the alternative" as a motion for summary judgment. While the Court is of the opinion that the foregoing satisfies the "notice" requirement of CPLR 3211 (c), the parties have in any event clearly charted a summary judgment course: the parties have revealed their respective proofs, appreciated and argued the legal issues involved, and in its submission, petitioner specifically argues, inter alia, that there exist issues of fact precluding summary judgment, and that respondent has not met the evidentiary requirements of CPLR § 3212. Accordingly, the Court will treat this motion as one for summary judgment.

Having decided to treat this as a summary judgment motion, the Court must then address an additional threshold issue, which has not been raised by the parties: the failure of respondent to attach the pleadings to her motion papers. CPLR § 3212 (b) specifically provides that the supporting papers for a summary judgment motion include copies of the pleadings. Here respondent has failed to do so. However, the Courts, in particular the Second Department, have held that despite the above statutory requirement, the omission to attach the pleadings may be excused as a mere irregularity under the following conditions: (1) the pleadings are otherwise available to the court, and (2) the rights of the opposing party are not impaired. Flushing AV Laundromat, Inc. v. Qu, 229 AD3d 516 (2nd Dept. 2024). This Court finds that both of these conditions have been met and will thus excuse the defect as a mere irregularity.

The Court will now turn to the substantive issues raised by the parties.

Summary Judgment Standard

It is well-settled law that "[t]he proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact." Alvarez v. Prospect Hosp., 68 NY2d 320 (1986). Entitlement to summary judgment must be established "by tender of evidentiary proof in admissible form." Friends of Animals, Inc. v. Associated Fur Mfrs., Inc., 46 NY2d 1065 (1979).

If the movant demonstrates entitlement to summary judgment, the burden then shifts to the opposing party to "demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action or tender an acceptable excuse for his failure so to do " Zuckerman v. City of New York, 49 NY2d 557 (1980)

Sufficiency of the Predicate Notice

Respondent claims that the predicate 30-day notice upon which this proceeding is based is defective in that it overstates the rent owed and thus runs afoul of RPAPL § 711. Petitioner alleges that the unpaid rent totals $18,065.60. Respondent contends that the amount demanded fails to reflect payments made by respondent in the amount of $7,739.00. If this assertion is accurate, the rent demand is overstated by 43%.

RPAPL § 711 (2) requires that as a predicate to commencing a nonpayment proceeding, the landlord must serve "a written demand of the rent." The rent demand must reflect a good faith approximation of the rent owed. JDM Washington Street, LLC, v. 90 Washington Rest. Associates, LLC, 36 Misc 3d 769 (Civ. Ct. NY Co. 2012). A discrepancy between a rent demand and the landlord's rent ledger can serve as a basis for establishing that the rent demand is not a good faith estimate of the rent due. See, e.g., 2110 Arthur Owners LLC v. Reyes, 34 Misc 3d 1208(A) (Civ. Ct. Bronx Co. 2011). A material overstatement of the rent claimed in a rent demand can render a petition defective and dismissible. JDM Washington Street, LLC, supra.

The question before this Court is whether or not respondent has tendered evidence in admissible form to prima facie demonstrate that the rent demand is not a good faith estimate of the rent due.

In support of her contention, respondent relies principally on a document she identifies as petitioner's rent ledger. Toscano Aff. ¶ 6, Exh. "A." Respondent claims that she received the document from her attorneys. Id. No evidence is offered to establish that the document satisfies the business record exception to the rule against hearsay. Significantly, despite respondent's assertion that she received the alleged rent ledger from her attorneys, in neither the supporting nor reply affirmations of respondent's counsel is the provenance of the document addressed. As respondent's case for summary judgment rests largely on that document, respondent strictly speaking cannot be said to have prima facie shown entitlement to such relief.

That said, the Court is not unmindful of the fact that petitioner in its opposition, while questioning how respondent came to be in possession of the document, does not question that the document is indeed its rent ledger. In fact, petitioner's own opposition papers refer to the document as "its ledger." Teague Affm. ¶ 30. Under the circumstances, and mindful of the fact that the Court must render substantial justice to the parties, the Court will deem the ledger properly admitted for consideration.

However, notwithstanding admission of the ledger for consideration by the Court, it appears nevertheless that there exist triable issues of fact sufficient to preclude the granting of summary judgment. There is a sharp factual dispute over the amount of rent due, and the method by which it was calculated, including the application of payments to prior arrears.

Accordingly, respondent is not entitled to summary judgment on that branch of the motion based upon a defect in the predicate notice.

As to Sufficiency of the Petition

Respondent also seeks summary judgment dismissing this proceeding on the basis that the petition fails to accurately state the facts upon which this proceeding is based, in contravention of RPAPL § 741. This branch of the motion is also based on the assertion that the amount stated as rent due is inaccurate, for the identical reasons given with respect to the predicate notice. Accordingly, as the Court has determined that there exist triable issues of fact with respect to the amount of rent arrears, this branch of the motion must also be denied.

Verification of the Petition

Lastly, respondent moves for summary judgment on the basis that the petition is not verified by a person with authority to do so in accordance with RPAPL § 741. Specifically, respondent claims that the petition is defective because neither the verification nor the predicate notice is signed by an officer or member of petitioner. Natale Affm. ¶ 17.

Initially, it is to be observed that there is no requirement in law that the predicate notice be signed. RPAPL § 711 (2).

With respect to the verification, under New York law, a party who receives a defectively verified pleading must act with due diligence to preserve its objection. This rule is codified in CPLR Rule 3022, which provides as follows:

A defectively verified pleading shall be treated as an unverified pleading. Where a pleading is served without a sufficient verification in a case where the adverse party is entitled to a verified pleading, he may treat it as a nullity, provided he gives notice with due diligence to the attorney of the adverse party that he elects so to do.

Failure to promptly notify the adverse party of the defective verification results in a waiver of that objection. Lepkowski v. State, 1 NY3d 201 (2003). In this case the petition was filed on October 17, 2025, over eight months ago. Prior to the instant motion, including in her prior dismissal motion, no objection to the verification was raised by respondent. Accordingly, the Court determines that any such objection has been waived, and the branch of the instant motion based on such objection is denied.

Conclusion

For the reasons stated above, the Court determines that the respondent has failed to establish her entitlement to summary judgment on any of the branches of her motion, and accordingly,

It is hereby

ORDERED, that the respondents' motion is denied in all respects, and the Clerk of the Court is directed to schedule a pretrial conference.

Dated: July 6, 2026

Garnerville, New York

E N T E R .

Hon. GEORGE G. COFFINAS,

Town Justice, Town of Haverstraw

George G. Coffinas, J.