Recitation, as required by CPLR 2219(A), of the papers considered in review of the respondent’s motion dismiss: Papers Numbered Notice of Motion and Affidavits Annexed 1 Memorandum of Law in Support of Law in Support of the Motion 2 Answering Affirmation 3 Replying Affirmation 4 Exhibits 5 Decision & Order Upon the foregoing cited papers, the Decision and Order in this motion is as follows: In this non-payment proceeding, the petitioner has alleged that the respondent owes several months of rent, at a monthly rent of $1,878.45 for September 2017 and at $1,964.40 per month thereafter. The respondent filed a pro se answer wherein he denied the allegations set forth in the petition. He also alleged that he had withheld rent because the petitioner had failed to make needed repairs. On the initial court date, the matter was adjourned for a Bengali language interpreter. The respondent subsequently obtained legal representation and then moved for leave to file an amended answer. The parties agreed that the amended answer would be deemed accepted and filed. In said amended answer, the respondent alleged that: the petitioner had failed to make a proper rent demand; the petitioner was seeking rent based on “deemed” lease renewals, and; the apartment was not properly registered. As an affirmative defense, the respondent alleged that the petitioner had commenced this non-payment proceeding in retaliation after he complained to HPD. The respondent also counterclaimed, alleging that the petitioner was seeking rent higher that the rent set forth in the last signed lease and that the petitioner’s failure to make repairs constituted a breach of the warranty of habitability. He asked for an order to correct the alleged conditions and for a rent abatement. The proceeding was ultimately transferred to the instant Part for trial. At said trial, the petitioner’s registered managing agent testified that he went to the respondent’s apartment in about mid-November 2017 and spoke to the respondent and his son. He said he told them that the respondent owed about $6,300 in rent. The managing agent further testified that the last renewal lease between the parties expired as of February 28, 2013; the monthly rent was listed as $1,902.88, with the respondent paying a preferential rent of $1856. The petitioner further stated that leases were registered with DHCR in 2013 and 2014 at higher amounts. The witness conceded that the rent sought in this proceeding was more than the amount set forth in the last signed lease. The managing agent offered no explanation as to why there had been no renewal leases signed by the parties after the last renewal lease expired. The petitioner claimed that $22,972.71 was owed through December 31, 2018. Although the witness stated that he believed the public assistance may have made some rental payments on the respondent’s behalf, he did not know the amount paid or when said amounts were paid. Moreover, the witness did not have a rental ledger that would support the amount claimed to be due. The petitioner then rested. The respondent then moved to dismiss the petition pursuant to CPLR §3211, and to move forward with his counterclaims. For the reasons set forth herein, the respondent’s motion is granted. The respondent has argued that dismissal is appropriate because the petitioner has failed to establish its prima facie case. Specifically, the respondent has argued that the petitioner has failed to make a proper rent demand, has failed present a rental breakdown and seeks rent in excess of the amount set forth in the last signed lease between the parties. While the court recognizes that there is merit to the respondent’s contentions with respect to the adequacy of the rent demand, the court first notes that the petitioner has failed to establish that the most critical aspect of its case, to wit, that there is an agreement to pay rent. It is axiomatic that in order to maintain a non-payment proceeding, there must be an agreement between the landlord and the tenant for the payment of rent. The managing agent conceded during his testimony that the last lease signed by both parties expired as of February 28, 2013. He further conceded that rents higher than the rental amount in this last lease were registered with DHCR. No explanation was given as to why no renewal leases were signed after February 28, 2013. The courts have held that to a “deemed” lease can not form the basis of a non-payment proceeding since there was no lease in effect. See, e.g., Realty, LLC v. Trec, 39 Misc.3d 150(A), 2013 WL 3111295 (N.Y. App. Term 2013). As the court held in Samson Mgt., LLC v. Hubert, 92 A.D, 3d 932 (App. Term 2010), “deemed” lease renewals are not permitted under RPL §232-c. Thus, when a rent stabilized tenant’s lease expires, and the tenant remains in possession, the landlord is not permitted to deem a lease renewed. A non-payment proceeding must be predicated on a rental agreement that is in effect at the commencement of the proceeding. Matter of Jaroslow v. Lehigh Val. R.R. Co., 23 N.Y.2d 991 (1991). The court need not address the issue of the adequacy of the rent demand. Nevertheless, the court finds that the oral rent demand did not satisfy the requirements of the RPAPL. A landlord is required to make a demand for rent prior to commencing a non-payment proceeding. This demand must inform the tenant of the period for which the rent is allegedly due, and the amount claimed. It must be a good faith assertion of the rent due at the time of the demand and must be for a specific sum representing rent due for specific months. Schwartz v. Weiss-Newell, 87 Misc. 2d 558, 386 N.Y.S.2d 191 (N.Y. City Civ. Ct. 1976); Dendy v. McAlpine, 5/27/2010 N.Y.L.J. 37, col. 6 (App. Term 2d Dep’t). The oral demand described by the managing agent satisfied none of these requirements. He testified that he told the respondent and his son that “they owed approximately $6,300 in back rent”. He did not inform the respondent of the specific time period covered by the demand. Thus, for the reasons set forth herein, the respondent’s motion to dismiss the petition is granted. The respondent also seeks an order permitting him to move forward on his counterclaims. As previously set forth, the respondent has alleged that the petitioner has charges rental amounts based in “deemed” lease renewals He has also claimed that the he is entitled to an abatement because of the petitioner’s breach of the warranty of habitability and that he is entitled to the issuance of an order to correct with respect to Housing Code violations. That portion of the respondent’s motion is granted to the extent that this proceeding is adjourned to Part T on May 14, 2019 at 9:30 AM for a hearing with respect to the respondent’s counterclaims. This constitutes the decision and order of this court. Dated: March 28, 2019 Bronx, New York
