ASSOCIATES v. SUN LEE DELI GROCERY INC 321 (2003)

Order entered March 15, 2002 (Karen S. Smith, J.) reversed with $10 costs, tenant's motion to dismiss the nonpayment petition is denied, and landlord's cross-motion to amend the petition is granted.

In this commercial nonpayment proceeding, landlord's petition sought additional rent for the preceding five-year period based upon the consumer price index escalation clause in the lease.   Tenant made a pre-answer dismissal motion principally addressed to alleged defects in form and service of the predicate notice and petition.   Civil Court granted the motion on the ground-not raised in the moving papers-that landlord had failed to provide semi-annual statements for the additional rent due, as required under lease paragraph 40(B), thereby failing to comply with a condition precedent to payment (see, Weisblatt v. Schwimmer, 249 A.D.2d 297, 670 N.Y.S.2d 891;  Walton Gailrach Realty Co. v. Eastern Analytical Labs, Inc., 246 A.D.2d 532, 667 N.Y.S.2d 407).   In this respect, the court impermissibly treated the motion as one for summary judgment, there being no record showing of “adequate notice to the parties” (see, CPLR 3211[c] ).  Landlord should be afforded an opportunity to contest this issue and submit any available evidence that prior demand for the charges was made (see, Huggins v. Whitney, 239 A.D.2d 174, 657 N.Y.S.2d 50).   Moreover, there is at least a question whether a sufficient demand was made for additional rent for the period ending April 1, 2001.

Landlord's cross-motion to correct the commercial petition's mistaken references to “apartment” is granted in the absence of prejudice or surprise (see, CPLR 3025[b] ).

PER CURIAM.