Recitation, as required by CPLR 2219(a) Notice of Motion and Affidavits Annexed 1 Order to Show Cause and Affidavits Annexed 0 Answering Affidavits 2 Replying Affidavits 3 Exhibits 4 Stipulations 0 Other 0 DECISION AND ORDER Petitioner commenced this non-payment proceeding to recover possession of the 1st Floor located at 12-19 Sage Street, Far Rockaway, NY 11691 (“premises”). The Petition alleges that Respondents occupy the premises pursuant to an expired written lease agreement at $2,200.00 per month and that Respondents owe rent arrears totaling $35,680.00 from January 2018 through May 2019. The written lease agreement, dated September 13, 2016 (“Lease”), is attached to the Petition as “Exhibit B.” The premises are in a two-family house that is not subject to rent stabilization or rent control. Respondent Ryan Wasserman filed a pro se Answer and the proceeding was adjourned from June 5, 2019 to July 30, 2019. On the return date, Respondent Ryan Wasserman retained The Legal Aid Society as counsel and the proceeding was adjourned for motion practice. Before the Court are two motions. Respondent Ryan Wasserman, by counsel, moves to dismiss this proceeding pursuant CPLR §3211 (a)(7), or in the alternative, for leave to interpose an amended answer pursuant to CPLR §3025(b). Respondent alleges that the rent demand is defective because it seeks rent for approximately 16 months, as opposed to only seeking rent for the monthly agreement in effect at the time this proceeding was commenced. As a month-to-month tenant, Respondent alleges he can only be dispossessed for failing to pay rent due pursuant to the monthly agreement then in effect. Therefore, Respondent argues that Petitioner’s rent demand fails to give a good faith approximation of the amount due because it overstates what Respondent must pay to avoid default. Petitioner opposes, and cross-moves for summary judgment against Respondent Ryan Wasserman pursuant to CPLR §3212 and for a default judgment against Respondent Wendy Wasserman pursuant to CPLR §3215. Both motions were fully briefed and are consolidated for disposition. In reviewing Respondent’s motion to dismiss pursuant to CPLR §3211(a)(7) for failure to state a cause of action, “the Court must afford the pleadings a liberal construction, accept all facts as alleged in the pleadings to be true, accord the [petitioner] the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory. However, bare legal conclusions are not presumed to be true, nor are they accorded every favorable inference.” (Breytman v. Olinville Realty, LLC, 54 A.D. 3d 703, 703-704 [App. Term, 2nd Dep't. 2008]; see also, Leon v. Martinez, 84 N.Y.2d 83 [1994]). In the case at bar, it is agreed that the parties had a valid Lease, that the Lease expired on September 30, 2017, that a month-to-month tenancy is created if Petitioner accepts rent after the Lease expires, that Respondent paid rent after the Lease expired, that a month-to-month tenancy was created, and that the rent specified in the Lease is $2,200.00 per month. The issue in dispute is the sufficiency of Petitioner’s rent demand. A rent demand is a condition precedent to commencement of a summary nonpayment proceeding and as such cannot be amended. (RPAPL §711(2); Chinatown Apts. v. Chu Cho Lam, 51 NY2d 786 [1980]). The predicate rent demand required by RPAPL §711(2) must clearly state the approximate good faith estimate of the sum allegedly due as well as the period for which the rent is demanded. (542 Holding Corp. v. Prince Fashions, Inc., 46 AD3d 309 [1st Dept 2007]; see also, Dendy v. McAlpine, 27 Misc.3d 138A [App. Term 2nd Dept 2010]). Measured by this standard, Petitioner’s rent demand sufficiently withstands the motion to dismiss. The rent demand clearly delineates the alleged rent due each month from January 1, 2018 through April 1, 2019 and the total alleged arrears. As such, the rent demand fairly apprises Respondents of the amount due. Respondent’s argument that the rent demand is defective relies on a distinction that can be drawn between a possessory versus a non-possessory judgment in a non-payment proceeding commenced against a month-to-month tenant. Respondent cites case law to support that distinction, however, that same case law undercuts Respondent’s motion to dismiss as Court’s have declined to dismiss similar proceedings on such grounds. A comprehensive rent demand to a month-to-month tenant that includes the total arrears owed is not rendered defective merely by the inclusion of prior months owed. For example, in Printerion Realty Corp. v. Fischer-Partelow, Inc., which Respondent cites, a month-to-month tenancy was created at the rate of $393.83 and the petitioner in that proceeding sued the respondent for $8,779.07 in rent arrears. The Court determined that each month in the month-to-month tenancy constitutes a new term, and that petitioner could only dispossess the tenant for failing to pay the rent due under the monthly agreement then in effect. Significantly for purposes of our analysis, rather than dismissing the non-payment proceeding because the rent demand included prior months owed, the Court bifurcated the judgment by awarding a possessory judgment for 1 month of rent and a non-possessory judgment for the arrears. (Printerion Realty Corp. v. Fischer-Partelow, Inc., 167 Misc. 452 [App Term, 1st Dept 1938]). Similarly, in Porcelli v. Donlin, which Respondent also cites, a month-to-month tenancy was created in an unregulated apartment and the petitioner in that proceeding sued for 6 months of rent. The respondent in that proceeding moved to dismiss the petition because it sought a possessory judgment for the preceding five months of rent as opposed to only seeking rent for the month in which the proceeding was commenced. The respondent in that proceeding also argued that the petitioner could not seek more than the current month of rent owed in the month-to-month tenancy. In accordance with Printerion, the Hon. Peter Wendt declined to dismiss the proceeding, rendered a possessory judgment for 1 month of rent, and scheduled a trial for the petitioner to seek a plenary judgment for the arrears. (Porcelli v. Donlin, 1988 NY Misc. LEXIS 893 (Civ Ct, Hous Part, Bronx County 1988]). Therefore, although Courts have drawn a distinction between a possessory and a non-possessory judgment in non-payment proceedings commenced against month-to-month tenants, that distinction does not warrant dismissal and does not render the rent demand in this proceeding defective. Therefore, that branch of Respondent’s motion which seeks dismissal is denied. The branch of Respondent’s motion to interpose an amended answer pursuant to CPLR §3025(b) is granted. Leave to interpose an answer must be freely given absent significant prejudice to Petitioner. (CPLR §3025; Edenwald Contracting Co., Inc. v. City of New York, 60 NY2d 957, 959 [1983]). In general, prejudice is not shown unless the party “has been hindered in the preparation of his or her case or has been prevented from taking some measure in support of his position.” (Loomis v. Civetta Corinno Const. Corp., 54 NY2d 18, 24 [1981]). Thus, it is well settled that a mere delay to a trial is not enough to find prejudice. The overwhelming body of case law provides that trial courts have broad discretion to grant leave to amend. (Murray v. City of New York, 43 NY2d 400 [1977]). Therefore, as Petitioner failed to demonstrate substantial prejudice, Respondent’s amended answer attached as “Exhibit A” to the motion is deemed served and filed. Petitioner’s cross-motion for summary judgment against Respondent Ryan Wasserman is denied. To obtain summary judgment, the moving party has the burden of demonstrating its cause of action or defense sufficiently to justify judgment in its favor as a matter of law. (CPLR §3212(b); Friends of Animals, Inc. v. Associates Fur Mfrs. Inc., 390 NY2d 298 [1979]). If there is any doubt as to the existence of a triable issue, summary judgment should not be granted. (Glick v. Dolleck, Inc. v. Tri-Pk Export Corp., 239 NE2d 725 [1968]). “To grant summary judgment it must clearly appear that no material and triable issue of fact is presented.” (Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957], citing Di Menna & Sons v. City of New York, 301 NY 118 [1950]). Respondent’s amended answer raises 5 affirmative defenses and 2 counterclaims. Respondent alleges, amongst other things, that Petitioner failed to accurately describe the premises, that Petitioner failed to register the building as a multiple dwelling, that the rent demand is defective, a laches defense, that there are warranty of habitability defenses and counterclaims, and that Respondent is entitled to attorneys’ fees. Given the defenses raised, there clearly are issues of fact which require trial. Therefore, Petitioner has failed to establish entitlement to judgment as a matter of law and that branch of the cross-motion is denied. Petitioner’s cross-motion for a default judgment against Respondent Wendy Wasserman is denied without prejudice. While it is true that Respondent Wendy Wasserman has not appeared or answered thus far, her co-respondent has appeared and answered the proceeding, which is now scheduled for trial. A default judgment at this juncture would be premature as the ultimate disposition of the proceeding remains pending. This decision is without prejudice to Petitioner seeking leave to request a default judgment at or after the trial takes place. Therefore, Respondent’s motion is granted in part and denied in part, and Petitioner’s cross-motion is denied as stated above. This proceeding will appear on the Part D calendar on October 15, 2019, at 9:30 a.m., for referral to Part X for trial. This constitutes the Decision/Order of the Court. Dated: September 25, 2019 Queens, New York
