WILLIAMSBURG HOUSING PRESERVATION LP v. KHAN (2025)

Recitation, as required by CPLR 2219(a):

Notice of Motion and Affidavits Annexed 1

Order to Show Cause and Affidavits Annexed 0

Answering Affidavits 2

Replying Affidavits 3

Exhibits 4

Stipulations 0

Other 0

Respondent Husnera Khan, by counsel, moves to dismiss this non-payment proceeding based on the allegation that the Rent Demand and Petition are defective as they fail to accurately reflect the rent arrears owed. Petitioner opposes.

A Rent Demand is a condition precedent to commencement of a summary nonpayment proceeding, and as such, cannot be amended. (RPAPL § 711(2) and § 741(4); see also, Chinatown Apts. v. Chu Cho Lam, 51 NY2d 786, 787 [1980]). The predicate rent demand required by RPAPL§ 711(2) must clearly state the approximate good faith estimate of the sum allegedly due as well as the period for which the rent is demanded. (542 Holding Corp v. Prince Fashions, Inc., 46 A.D 3d 309 [1st Dept 2007]; see also, Dendy v. McAlpine, 27 Misc 3d 138A [App. Term 2nd Dep't 2010]).

In reviewing Respondent's motion to dismiss pursuant to CPLR § 3211(a)(7) for failure to state a cause of action, “the Court must afford the pleadings a liberal construction, accept all facts as alleged in the pleadings to be true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory. However, bare legal conclusions are not presumed to be true, nor are they accorded every favorable inference.” (Breytman v. Olinville Realty, LLC, 54 AD3d 703, 703-704 [App. Term, 2nd Dept 2008]; see also, Leon v. Martinez, 84 NY2d 83 [1994]).

Respondent's motion alleges that the proceeding is defective for several reasons, one of which is that the Rent Demand merely cites an attached rent ledger which includes various charges and fees. Respondent also argues that Petitioner did not properly credit HRA shelter allowance payments. Petitioner in opposition does not dispute that it did not itemize the alleged arrears, but rather argues that HRA payments were properly applied as they were not earmarked and that the amount listed in a ledger seeks Respondent's share only, and therefore is an accurate estimation of what is owed.

Respondent's motion is granted and the proceeding is dismissed. The Rent Demand does not itemize what months are owed. Instead, the Rent Demand merely cites a total dollar amount and refers the reader to an attached rent ledger, which itself is not self-explanatory. The attached rent ledger, which dates back to July of 2022, is riddled with fees and adjustments and does not clearly state what rent is owed for what months. Rather than explaining what rent is owed, the Rent Demand merely points the reader to another document and directs the reader to make their own calculations. Respondents, their counsel and the court should not sifter through years of credits and debits to figure out what rent is outstanding. The Rent Demand is a document which should apprise one of the claims against them and should be clear enough to formulate a defense, which this Rent Demand does not. In effect, the Rent Demand impermissibly shifts the burden to Respondent and the court to calculate what rent is owed.

Therefore, for the reasons stated, Respondent's motion is granted, and this proceeding is dismissed without prejudice.

This constitutes the Decision/Order of this Court, which shall be uploaded to NYSCEF.

Julie Poley, J.