Petitioner ("Landlord") commenced this non-payment proceeding to recover possession of residential premises from respondent ("Tenant") and a money judgment for rent due in the sum of $3262.52, with interest thereon from the date of the petition, together with attorneys' fees and costs in the amount of $420.00. Landlord contends the rent was duly demanded from tenant by service of a three day notice upon her. The petition was returnable on January 14, 2010. Tenant failed to appear and Landlord's application for a default judgment of possession and a warrant was granted, which was stayed through January 20, 2010.

Following service of the 72 hour notice, Tenant filed an Order to Show Cause seeking a temporary stay of the warrant pending the determination of her motion for an order vacating the warrant of eviction and the judgment in favor of the Landlord pursuant to RPAPL §749 (3) and CPLR 5015 (a) and dismissing the petition upon the grounds that: the petition splits the cause of [*2]action by seeking payment of legal fees previously awarded to Landlord; the rent was tendered to Landlord which refused it; as a section 8 tenant, she cannot be evicted for failure to pay late fees; Landlord did not demand the rent before the petition was filed; the petition is defective in that it does not state the correct amount of rent or the months for which rent is owed and she did not owe Landlord any rent.

The motion was returnable on February 4, 2010. The parties and their counsel appeared and the motion was orally argued. The motion was granted to the extent of vacating the judgment and warrant of eviction as the court found Tenant had demonstrated a reasonable excuse for failing to appear on the return date of the petition and had demonstrated a meritorious defense to the petition. A bench trial was held at that time. After considering the sworn testimony of the parties and the documents admitted into evidence, the Court makes the following findings of fact and conclusions of law:

FACTS

Landlord is the owner of the premises located at 43 Claremont Gardens, Ossining, New York (the "premises"). Tenant lease the premises pursuant to a written lease agreement commencing September 1, 2009 and ending August 31, 2010 (the "lease") for a monthly rent of $1799.00. (Pet. "5").^[FN1] Tenant received a monthly subsidy of $549.00 from the Section 8 Tenant Based Assistance Housing Choice Voucher Program ^[FN2], and her share of the rent was $1257.00. (Pet. "1", Resident Profile) Tenant also agreed to pay the costs incurred by Landlord for utilities supplied to her apartment (Pet. "5", §3). Pursuant to section 3 of the lease, Tenant may also be required to pay other charges to Landlord such as attorney's fees and late fees as Added Rent.

Landlord maintains a Resident Profile for tenant that is updated daily. (Pet. "1") It includes the Tenant's rent and utility charges and payment history. Lourdes Alicea, the property manager, testified the Tenant's Resident Profile showed a balance of $4555.68 as of the trial. This balance includes rent, utilities, late fees and legal fees.

Ms. Alicea testified that she spoke to Tenant in October 2009 about the possible termination of the housing subsidy because she was not current with her rent. Tenant asked her to provide a statement that she did not owe Landlord any money so she could give it to the Public Housing Agency ("PHA"). Ms. Alicea was hesitant to provide the letter but agreed to do so if Tenant paid $2884.00 and paid the remaining balance of $1874.00 in biweekly $100.00 [*3]installments. This payment agreement was signed by Tenant, who also agreed not to dispute owing the balance contained therein. (Pet. "4"). As agreed, Ms. Alicea wrote a letter verifying Tenant was "up to date with her rent and utilities as of October 2009." (Res. "A")^[FN3] Ms. Alicea testified the $1874 balance included rent, utilities and late charges.

When Tenant allegedly failed to make rent payments after November 2, 2009, Ms. Alicea directed Landlord's counsel to prepare and serve a three day demand for rent on Tenant. (Pet. "3"). The demand requested payment of $4819.52, representing rent and additional rent, on or before December 13, 2009. A print out attached to the demand contained the Tenant's name and a past due lump sum of $4619.52 and a handwritten notation "3 day demand $200.00" making a total of $4819.52. According to the affidavit of service, the demand was served by conspicuous place service, regular mail and by certified mail. (Pet. "3")

Luz Rivera testified that she did not recall receiving the Three Day Notice and Demand for Rent. She admitted signing the payment agreement, owing $1874.00 to the Landlord and failing to make any of the required installment payments. However, it is not disputed that she made the $2884.00 payment which was credited to her account by the Landlord. She testified that she paid her rent and utility charges in full for November and December 2009 and she tendered her January rent to Landlord, which refused to accept it. Tenant's cancelled checks for the November and December payments were entered into evidence. (Res. "B") On November 2, 2009 Tenant made a payment of $2884.00. On November 29, 2009, Tenant made payments totaling $1357.00 and in December 2009 Tenant made payments totaling $1334.00. Tenant believed the balance sought by the Landlord represents payments not made by Section 8 due to the Landlord's failure to repair her apartment in 2008.

DISCUSSION/ANALYSIS

As Tenant receives a Section 8 housing subsidy, her tenancy can only be terminated during the lease term upon one of the grounds listed in 24 CFR §982.310. Pursuant to 24 CFR §982.310 (a)(1), the tenancy can be terminated for a serious violation including the failure to pay rent or other amounts due under the lease. Landlord is required to give Tenant a written notice that specifies the grounds for termination of her tenancy. This notice may be combined with any owner eviction notice, which is defined as a notice to vacate or initial pleading used under State or local law to commence an eviction proceeding, given to Tenant. Pursuant to 24 CFR §982.310 (e)(1) and (2), [*4]a copy of the owner eviction notice, e.g. the petition, must also be given to the PHA. The petition alleges Landlord has complied with the Section 8 law and regulations and Tenant did not contest this statement at least insofar as the giving of notice to the PHA.

Tenant does, however, contend that the Three Day Notice and Demand for Rent is defective in that it does not: identify the months for which rent is owed, identify the amount of rent owed for each month, fairly apprise the Tenant of what sum is owed and contains late charges, legal fees etc. Since the predicate notice is defective, Tenant contends the petition must be dismissed.

Pursuant to RPAPL§711 (2), a summary proceeding may be maintained to remove a tenant from possession for failing to pay the rent owed for the premises after a demand for the rent has been made or at least three days' notice in writing has been given requiring either the payment of the rent or possession of the premises. Proof that a proper demand for rent was made is a jurisdictional prerequisite for the maintenance of a non-payment summary proceeding (Schwartz v. Weiss-Newell, 87 Misc 2d 558, 386 NYS2d 191 (Civ. Ct., NY County, 1976). The purpose of the demand is to give tenants an opportunity to cure the alleged default by making a payment as well as to advise tenants of the risk of forfeiture and eviction if the default is not cured.St. James Court, L.L.C. v. Booker, 176 Misc 2d 693, 673 NYS2d 821(Civ. Ct, Kings Co. 1998). This purpose is defeated if tenants are given an inaccurate, vague or equivocal demand. Id. at695. Accordingly,

A proper demand for rent must fairly afford the tenant, at least, actual notice of the alleged amount due and of the period for which such claim is made. At a minimum, the landlord or his agent should clearly inform the tenant of the particular period for which a rent payment is allegedly in default and of the approximate good faith sum of rent assertedly due for each such period.

542 Holding Corp. v. Prince Fashions, Inc., 46 AD3d 309, 310,

848 NYS2d 37, 39 (1st Dept. 2007) citing Schwartz v. Weiss-Newell,

87 Misc 2d 558, 386 NYS2d 191 (Civ. Ct., NY County, 1976).

See also, Shoprite Supermarkets, Inc. v. Yonkers Plaza Shopping, LLC, 29 AD3d 564, 817 NYS2d 291 (2nd Dept. 2006). A defective predicate notice cannot be cured by amendment and thus requires dismissal of the petition. Sultanik v. Byrd, 15 Misc 3d 1141A, 841 NYS2d 823 (Just. Ct, Tn of Ossining, 2007), citing Chinatown Apts. v. Chu Co Lam, 51 NY2d 786, 433 NYS2d 86, 88 (1980).

A Demand for Rent which simply provides a lump sum has been held to be defective. In St. James Court, supra ., the court dismissed the petition holding:

The petitioner indicated a lump-sum amount for the period of February 1996 through November 1996. The court finds that this type of pleading fails to apprise the respondent of the correct amount due for each month. The court also finds that the statements in the rent demand are "vague and misleading" and give the respondent no indication as to how the petitioner arrived at his figures. Petitioner's rent demand failed to give respondent notice of the actual claims and afforded him no opportunity to prepare his defenses to this action. By failing to give a clear calculation of the rental arrears, the respondent is uninformed as to how he should proceed in order to avoid litigation and once commenced how to proceed with this case. If payments were made or there were issues of laches and stale rent, such claims could be used to defend the action.

St. James Court, L.L.C. v. Booker, 176 Misc 2d 693, 695,

673 NYS2d 821(Civ. Ct, Kings Co. 1998).

In the case at bar, the Landlord's demand for rent merely provides a past due amount of $4619.52 without any breakdown whatsoever as to what the sum represents, the months for which rent is allegedly owed, what portion constitutes late charges, legal fees or utilities. The Petition moreover claims the rent owed is $3262.52. The court spent significant time analyzing and trying to reconcile the conflicting evidence and Resident Profiles issued by Landlord. The evidence established that after payment of the agreed upon $2884.00 and execution of the payment agreement on October 15, 2009, Tenant's rental account balance should have been zero. Thereafter, the following charges were incurred and payments made:

BillingPayments:

11/1/09:late charge10.0011/29/09: $1257.00 (ck 188) [*5]

rent1257.00100.00 (ck 189)

utility Charge:143.41

Total:$1410.41Total: $1357.00 Balance: $53.41

12/1/09late charge10.0012/24/091257.00 (ck 193)

rent1257.0077.00 (ck 194)

utility charge76.40

Total:1343.40Total:$1334.00 Balance: $9. 40

When the Three Days' Notice and Demand for Rent was served by Landlord on December 8, 2009, Landlord had received and deposited Tenant checks numbered 188 and 189, so the rent owed was actually $1257.00, not $4619.52. Even if the balance included in the payment agreement is added to the December rent, the alleged past due amount is not equivalent to the sum set forth in the aforementioned demand. Accordingly, the court finds the Three Days' Notice and Demand for Rent did not apprise Tenant of the particular period for which a rent payment was allegedly in [*6]default and did not provide an approximate good faith tally of rent allegedly due for each such period and therefore did not comply with the requirements of RPAPL§711 (2). As the predicate notice is defective and is not subject to cure by amendment, the petition must be and is dismissed.

The foregoing constitutes the Decision and Order of the Court.

Dated:February 22, 2010

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HON. NANCY QUINN KOBA

Town Justice