Petitioner commenced this summary proceeding to recover unpaid rent for Apartment 15 located at 68 Forsyth Street, New York, NY (the Apartment). Respondent has not served or filed an answer to the petition, moving instead to dismiss the proceeding.

The apartment was originally leased to respondent's father. In 2002 petitioner brought a suit against respondent's father which was ultimately settled. On January 16, 2003 a stipulation of settlement was executed by all the parties in interest including the respondent herein. There, respondent's father agreed not to assert any right to the apartment; further, the parties agreed that on condition the apartment would be occupied solely by the respondent, his wife and their children, petitioner would issue a rent stabilized lease to respondent for a one-year period, from July 1, 2002 (to June 30, 2003), at a preferential rate of $801.12 per month (respondent's exhibit C). Eight days later, on January 24, 2003, petitioner and respondent executed the one-year lease for the apartment which preserved the legal regulated rent of $1,075.98 and provided for the preferential rent of $801.12 that was agreed upon in the stipulation. In a rider to this lease, the parties further agreed that the rent concession would be for the duration of the tenancy:

If Renter chooses to renew the terms of this lease, this preferential rent amount, plus all other lawful increases, shall be used to calculate all applicable increases to establish the renewal rent. Thereafter, each successive renewal rent shall be calculated based upon increases to the most recently established renewal rent for as long as the Renter remains in occupancy (respondent's exhibit B, at 7).

In another clause of the lease, petitioner and the respondent expressly agreed that: "The stipulation of settlement L & T 95453/02 is incorporated by reference herein and to the extent that there is any inconsistency between the stipulation and this lease, the stipulation controls" (Id. at 4).

The first renewal lease, dated February 26, 2003, preserved the legal regulated rent and also explicitly calculated the preferential rent based upon the previous preferential rent of $801.12. Respondent accepted this renewal for the two year period from July 1, 2003 to June 30, [*2]2005 at a preferential rent of $852.87. Thereafter, petitioner forwarded three subsequent renewal leases to respondent which calculated only a new legal regulated rent and made no reference to the lower preferential rent. Respondent respectively signed each renewal lease, accepting a one-year renewal term, and returned them to petitioner.

As evidenced by respondent's affidavit and a sampling of rent checks covering the period from December 2003 through January 2007 which respondent annexed to this motion, respondent continued to pay and petitioner continued to accept much lower rental amounts than both the legal regulated rent and the preferential rent amount agreed to by the parties. For example, a copy of respondent's rent check for the month of December 2003 indicates that respondent paid only $440.37 for that month (respondent's exhibit E at 5). This practice of issuing renewal leases requiring payment of the preferential rent or the legal regulated rent and respondent, in fact, paying a much lower amount which petitioner accepted without objection, continued for approximately four years. In January 2007, petitioner stopped accepting the lower amount respondent was tendering and, in July 2007, petitioner commenced this proceeding to recover the legal regulated rent.

Respondent contends the proceeding must be dismissed because petitioner's prerequisite statutory rent demand for the higher legal regulated rent is an erroneous statement of the amount which is actually due. Petitioner, on the other hand, asserts that its demand is not erroneous. According to petitioner, the stipulation of settlement provided for a preferential rent for a one year period. The lease, however, provided for a preferential rent for the duration of the tenancy. Petitioner contends these two clauses are inconsistent with one another and because there is an inconsistency the terms of the stipulation control.

There is, however, no inconsistency between the terms of the stipulation and the lease. It is well established that the interpretation of the provisions of a lease is governed by the same rules of construction applicable to other agreements (Star Nissan v Frishwasser, 253 AD2d 491, 492 [2d Dept 1998], citing New York Overnight Partners v Gordon, 217 AD2d 20, 24 [1st Dept 1995], affd 88 NY2d 716, citing Backer Mgt. Corp. v Acme Quilting Co., 46 NY2d 211, 217 [1978]). Where the intent of the parties is clear and unambiguous from the language employed on the face of the contract, the courts may not resort to extrinsic evidence (W.W.W. Assocs. v Giancontieri, 77 NY2d 157, 162 [1990]; Doherty v New York Tel. Co., 202 AD2d 627, 628 [2d Dept 1994]) and the interpretation of the agreement is a matter of law solely reserved for the court (W.W.W. Assocs. v Giancontieri, 77 NY2d at 162). Further, when interpreting a writing, the court should "adopt an interpretation which gives meaning to every provision of a contract" (Muzak Corp. v Hotel Taft Corp., 1 NY2d 42, 46 [1956]; see also W.W.W. Assocs. v Giancontieri, 77 NY2d at 162; Two Guys v S.F.R. Realty Assocs., 63 NY2d 396, 403 [1984]). Here, in order to give effect to every provision of the contract, i. e., lease and stipulation, the stipulation should be interpreted to provide respondent with a preferential rent for the first year of the tenancy. The lease should be interpreted to cover the period after the first year of the tenancy, specifically, the duration of respondent's tenancy. By this interpretation, both clauses are given meaning and effect. When these two clauses are read together, respondent is entitled to a preferential rent for the duration of the tenancy.

A proper good faith demand for unpaid rent is a prerequisite to the maintenance of a summary proceeding (Zenila Realty Corp. v Masterandrea, 123 Misc 2d 1 [Civ Ct, NY County 1984]). Here, because respondent is entitled to a preferential rent for the duration of the tenancy, [*3]petitioner's demand for the higher legal regulated rent in the statutory three-day notice was not made in good faith.

Accordingly, respondent's motion is granted and the proceeding is hereby dismissed.

The Clerk of this court shall serve a copy of this decision upon all parties.

The foregoing constitutes the decision and order of this court.

Dated:New York, New York____________________________

March 14, 2008J. H. C.

To:Sperber, Denenberg & Kahan, P.C.

Attorneys for Petitioner

48 West 37th St. - 16th Floor

New York, NY 10018

Gerald B. Liu, Esq.

LSNY Manhattan

90 John Street

New York, NY 10038