Sherman Associates, L.P., Petitioner(s), v. Beverly Louis et al., Respondent(s) (2026)

Papers Numbered

Notice of Motion; Affirmation in Support; Memorandum of Law; Exhibits NYSCEF # 9 -17

Notice of Cross-Motion; Affirmations in Support; Exhibits;

Affidavit of Service NYSCEF # 19-30

Opposition to Cross-Motion/Reply; Affirmation in Support;

Memorandum of Law; Exhibit NYSCEF # 31 -33

Reply Affirmation NYSCEF # 34

Upon the foregoing cited papers, the decision and order on this motion is as follows:

Petitioner SHERMAN ASSOCIATES, L.P. ("Petitioner") commenced the instant summary nonpayment proceeding against Respondents BEVERLY LOUIS ("Louis"), JOHN DOE and JANE DOE (collectively "Respondents") alleging unpaid rent. See NYSCEF Doc. Nos. 1-3.

Louis filed a pro se Answer asserting several defenses, including that the rent (or part of the rent) had been paid and that there are conditions in the subject-premises in need of repair and inspection (the "Louis Answer"). See NYSCEF Doc. No. 4.

Mobilization for Justice then filed a Notice of Appearance for Louis along with a demand for Bill of Particulars. See NYSCEF Doc. Nos. 5-6. Petitioner filed a Response to the Bill of Particulars. See NYSCEF Doc. No. 8.

Thereafter, Respondent filed the instant application seeking inter alia: leave to amend the Louis Answer and dismissal of the subject-proceeding ("Respondent's Motion").

In support of Respondent's Motion, Respondent alleges that the court should grant leave to amend the Answer (the "Proposed Amended Answer") as Respondent was unaware of several defenses because she was a pro se litigant, and that granting leave will not prejudice or surprise the Petitioner. Further, Respondent seeks to dismiss the petition because Petitioner fails to plead the regulatory status of the subject-premises; the Petitioner failed to serve the Violence Against Women Act ("VAWA") Notice; and because the Petitioner failed to serve the Coronavirus Aid, Relief, and Economic Security Act ("CARES Act") Notice.

Petitioner now files a Cross-Motion seeking inter alia: the denial of Respondent's Motion and leave to file an amended Petition ("Petitioner's Cross-Motion").

In support of Petitioner's Cross-Motion, Petitioner alleges that Petitioner was not required to plead the regulatory agreement with the City of New York; that to the extent the Petitioner was required to plead the regulatory agreement with the City of New York, it is an amendable defect and there is no prejudice to Respondent and that the objections in point law, which are in Respondent's proposed Amended Answer were waived by failure to include them in the Pro Se Answer and lack merit. Petitioner also states that a private landlord like Petitioner is not the type of "covered housing provider" contemplated by VAWA. Petitioner further argues that if Petitioner is a "lessor" under the CARES Act, and the premises are a "covered dwelling", then a rent demand does not qualify as a "notice to vacate".

In opposition to Petitioner's Cross-Motion and in further support of Respondent's Motion, Respondent alleges that Petitioner's affirmation in opposition was not properly affirmed pursuant to CPLR 2106, and as such, should not be considered; that Petitioner failed to refute Respondent's allegations with regard to the VAWA Notice and CARES Act Notice; that Petitioner has failed to demonstrate any prejudice regarding Respondent's proposed amended answer; and that Petitioner's Cross-Motion should be denied, as the failure to plead the regulatory agreement, failure to serve the VAWA Notice and failure to serve the CARES Act Notice are fatal defects that cannot be cured by amendment.

In Reply, Petitioner alleges that the affirmations attached to Petitioner's Cross-Motion substantially comply with CPLR 2106 and that the Petition is amendable to address the alleged defects Respondent points to.

DISCUSSION

"Leave to amend the pleadings shall be given absent prejudice or surprise ... Fahey v. County of Ontario, 44 NY2d 934, 935, 408 N.Y.S.2d 314, 380 N.E.2d 146 (1978); Akos Realty Corp. v. Vandemark, 157 AD2d 632, 550 N.Y.S.2d 650 (1st Dept. 1990) Leave to amend a pleading should be freely given, and the decision is committed to the court's discretion. .... there must be lateness coupled with significant prejudice to the other side in order to bar amendment." Edenwald Contracting Co., Inc. v. City of New York, 60 NY2d 957, 959, 471 N.Y.S.2d 55, 459 N.E.2d 164 (1983)." Yorkville Plaza Assocs., LLC v. Reynolds, 71 Misc 3d 982, 990, 146 N.Y.S.3d 382, 388 (NY Civ. Ct. 2021).

"A proper showing of prejudice must be traceable not simply to the new matter sought to be added, but also to the fact that it is only now being added. There must be some special right lost in the interim, some change of position or some significant trouble or expense that could have been avoided had the original pleading contained what the amended one wants to add" Four Thirty Realty LLC v. Kamal, 83 Misc 3d 138(A), 217 N.Y.S.3d 800 (App. Term. 1st. Dept. 2024).

Here, Respondent seeks leave to amend the Pro Se Answer to add objections in law, regarding Petitioner's alleged failure to plead the regulatory status, Petitioner's alleged failure to serve a VAWA Notice, and Petitioner's alleged failure to serve the CARES Act Notice (the "Proposed Amended Defenses").

The Proposed Amended Answer also seeks to add a defense and counterclaim alleging violations of the warranty of habitability, which are raised in the Pro Se Answer and which Petitioner does not oppose.

Petitioner opposition to the amendment is that the objections were waived by failing to include them in the Louis Answer and that they lack merit. However, Petitioner's Cross-Motion is silent with regard to any lateness or prejudice that the amendment would cause.

On its face, Respondent's Proposed Amended Defenses are all cognizable defenses to a summary nonpayment and are sufficiently pled, so as to place Petitioner on notice of the nature of the claims and defenses. Fairmont 88 LLC v. Yu, 86 Misc 3d 528, 531, 229 N.Y.S.3d 843, 847 (NY Civ. Ct. 2025).

As such, the portion of Respondent's Motion seeking leave to amend the Answer is granted.

Service of a proper rent demand is the foundation of a summary nonpayment proceeding. EOM 106-15 217th Corp. v Severine, 62 Misc 3d 141[A] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019.

A rent demand is a statutorily required predicate notice that must be served on a tenant before a nonpayment proceeding can commence. (RPAPL § 711(2); Moniaci v Kelly, 73 Misc 3d 127[A] [App Term, 2d Dept 2021]). As predicate notices may not be amended, a defective predicate notice affects the viability of a summary RPAPL proceeding. (Chinatown Apts. v Chu Cho Lam, 51 NY2d 786, 788 [1980]). See 1451 Assocs. LP v. Jordan, 88 Misc 3d 1213(A), 248 N.Y.S.3d 449 (NY Civ. Ct. 2025); See also, Stepping Stones Assocs. LP, Petitioner-Landlord, v. Steven Haughton [REDACTED] White Plains, New York 10604, Respondent-Tenant., No. LT-375-25/WP, 2026 WL 2652224, at *5 (NY City Ct. Apr. 8, 2026).

In New York, the case law is clear- for summary nonpayment proceedings for premises which are covered by the CARES Act, a 30-day rent demand is required. See, 1451 Assocs. LP v. Jordan, 88 Misc 3d 1213(A), 248 N.Y.S.3d 449 (NY Civ. Ct. 2025); Belplain Realty Co. Inc. v Caro, 85 Misc 3d 1278[A] [Civ Ct, Bronx County 2025]; GO HPS LLC v Harris, 86 Misc 3d 1082* [Civ Ct, Queens County 2025]; HP Tyler's Bronx HDFC, Inc. v De La Cruz, 2025 NY Misc LEXIS 538 *3, *4 [Civ Ct, Bronx County 2025].

Petitioner does not dispute that they are not a covered lessor, or provide any evidence that the CARES Act does not apply here. Rather, Petitioner argues that a rent demand does not qualify as a "notice to vacate" under the CARES Act.

Petitioner as such does refute Respondent's claim that the CARES Act applies to the subject-premises and/or Petitioner, relying instead on the type of proceeding commenced and the type of predicate notice served (a rent demand) for Petitioner's failure to serve a CARES Act Notice.

However, as noted hereinabove, the case law in New York is clear: the requirement to serve a CARES Act Notice does not depend on the proceeding commenced. That is, the CARES Act and its notice requirements apply to nonpayment proceedings, such as the instant one.

Petitioner's failure to serve a 30-Day Notice pursuant to the CARES Act is a fatal defect to the proceeding, and as such, the matter is dismissed. The Court does not address the balance of Respondent's Motion or Petitioner's Cross-Motion and denied as moot.

CONCLUSION

Motion Seq # 1 is GRANTED, and the proceeding is dismissed. Motion Seq # 2 is DENIED.

Dated: September 22, 2026

Bronx, New York

Hon. Alberto Gonzalez

Alberto Gonzalez, J.