1616 PRESIDENT STREET ASSOCIATES LLC v. ACKIE (2024)

ORDERED that the order, insofar as appealed from, is modified by reducing the amount to be deposited with the clerk of the Civil Court to the sum of $6,033.64, and tenant is directed to deposit that sum within 10 days after service of a copy of this decision and order upon her; as so modified, the order, insofar as appealed from, is affirmed, without costs.

This nonpayment proceeding is based upon rental arrears of $6,033.64 for March 2020 to November 2020. The proceeding was stayed until 2022 due to a COVID-19 Hardship Declaration and an application with the COVID-19 Emergency Rental Assistance Program. On August 24, 2022, after the stays expired, tenant filed an answer which asserted, as relevant here, a defense founded upon Multiple Dwelling Law § 302-a. Tenant appeals from so much of an order of the Civil Court dated January 10, 2023 as directed tenant to deposit $30,073.39, representing the amount allegedly due at the time of the answer, in order to maintain the defense.

If a rent-impairing violation remains uncorrected for six months after notice is given of the violation, a landlord cannot collect rent for the subsequent period that the rent-impairing violation remains uncorrected (see Multiple Dwelling Law § 302-a [3] [a]). In a nonpayment proceeding, it is a precondition of a defense founded upon Multiple Dwelling Law § 302-a that, when interposed, a tenant must deposit with the clerk of the court “the amount of rent ․ upon which the proceeding to recover possession is based” (Multiple Dwelling Law § 302-a [3] [c]), which is the sum alleged in the nonpayment petition, including any amendments already made to the petition upon motion of the petitioner (see New York City Hous. Auth. v Sinclair, 21 Misc 3d 133[A], 2008 NY Slip Op 52183[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008]). Here, landlord did not move to amend the petition and, therefore, it was improper to require a deposit in excess of the sum alleged in the nonpayment petition (see 22l E. 78th Tenants Corp. v Cohen, 36 Misc 3d 126[A], 2012 NY Slip Op 51158[U] [App Term, 1st Dept 2012]; One Lenox LLC v Rivers, 2022 NY Slip Op 34545[U] [Civ Ct, Kings County 2022]). Consequently, the order must be modified to reflect only the arrears alleged in the petition. Tenant shall make the required deposit within 10 days after service of a copy of this decision and order upon her.

Accordingly, the order, insofar as appealed, is modified by reducing the amount to be deposited with the clerk of the court to the sum of $6,033.64, which deposit shall be made within 10 days after service of a copy of this decision and order upon her.

TOUSSAINT, P.J., MUNDY and OTTLEY, JJ., concur.