Passarelli Family P'ship, LP v. Davis

Decision Date15 June 2011
Docket NumberL & T 50377/11
PartiesPassarelli Family Partnership, L.P., Petitioner, v. Harry Davis and LEONARD DAVIS, Respondents
CourtNew York Civil Court

Petitioner's Notice of Cross-Motion by Jacobi, Sieghardt, Bousanti, Piazza & Fitzpatrick, and Affidavit in Support and in Opposition by Petitioner Passarrelli Family Partnership, LP by Guido Passarelli, Member.

Affirmation in Reply and in Opposition by William Whelan, Esq.

Affidavit in Reply by Petitioner Passarrelli Family Partnership, LP by Guido Passarelli, Member.

Marina Cora Mundy, J.

The instant non-payment proceeding was commenced against respondents to recover rental arrears. Respondents have moved to dismiss the proceeding pursuant to CPLR §3211(a)(1), (4) and (7) based on Petitioner's failure to serve a proper predicate rent demand. Petitioner cross-moves for summary judgment pursuant to CPLR §3212. Respondent's Motion to Dismiss the Petition is granted and Petitioner's Cross-Motion for Summary Judgment is denied as moot.

Summary proceedings are based on strict compliance with statutory predicate notice requirements; Petitioner's failure to do so warrants dismissal pursuant to CPLR §3211(a)(7) for failure to state a claim upon which relief may be granted. In the instant matter, Respondent Harry Davis asserts that Petitioner's Three-Day Notice to Tenant was defective as same contained a demand for arrears that were not collectible by virtue of Petitioner's late filing of a re-registration of the Premises with the Department of Housing and Community Renewal ("DHCR"). This Court agrees.

Failure to properly and timely comply with filing an annual rent registration bars theLandlord from collecting a rent increase in excess of the base date rent. Rent Stabilization Code §2528.4. 100 Audobon Holdings, LP v. Hernandez, 28 Misc 3d 140(A), 2010 N.Y.Slip Op. 51604(U)(N.Y.Sup.App. Term 2010). According to DHCR printouts annexed to the moving papers herein, Petitioner herein re-registered the Premises on November 17, 2009 after not having done so since 1991. The last rent collected prior to re-registration was $400.00.

In addition, the Petitioner's right to collect uncollected rent increase prior to late filing is waived. 17 East 101st St. Associates v. Huguenin, 161 Misc 2d 815, 614 N.Y.S.2d 1003 (N.Y.City Civ.Ct. 1994).

In its Three (3) Day Notice to Tenant, Petitioner requests pre-re-registration rents in the amount of $700.00 per month. This amount is incorrect by virtue of Petitioner's failure to properly and timely re-register the Premises with DHCR pursuant to Rent Stabilization Code §2528.4. Such failure renders it impossible for Landlord to collect $700.00 as the rent increase allowable upon re-registration during the period prior to November 17, 2009, the date on which the Premises was re-registered with DHCR.

One purpose of the rent demand requirement pursuant to RPAPL §711 is to afford a tenant an opportunity to avoid litigation by paying the amount due. 2229 Creston Partners LLC v. Maria Ramos,31 Misc 3d 1221(A), 2011 N.Y.Slip.Op. 50791 (N.Y.City Civ. Ct. 2011). A predicate rent demand must set forth a good faith approximation of the rent that a tenant would have to pay to avoid litigation. If it does not, it is defective. Dendy v. McAlpine, 27 Misc 3d 138(A), 911 N.Y.S.2d 691 (N.Y.Sup.App.Term 2010) In this matter, the Three Day Notice to...

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