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 the [*2]Landlord 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 Tenant is defective as it demands more than the Petitioner is actually owed. Rochdale Village, Inc. v. Goode, 16 Misc 3d 49, 842 N.Y.S.2d 142 (N.Y.Sup.App.Term 2007).

As proper predicate rent demand is a condition to commencement of a non-payment proceeding, it cannot be amended nunc pro tunc. See Vartarian v. Brady, 184 Misc 2d 333, 707 N.Y.S.2d 285 (N.Y.City Civ.Ct 1999), wherein the Court held that the condition precedent of proper notice cannot be revived by amendment (citing Chinatown Apts. v. Chu Cho Lam, 51 NY2d at 787). See also St. James Court LLC v. Booker, 176 Misc 2d 693, 673 N.Y.S.2d 821 (N.Y.City Civ.Ct. 1998)(defects in the predicate notice are not subject to cure by amendment); Homestead Equities, Inc. v. Washington, 176 Misc 2d 459, 672 N.Y.S.2d 980 (N.Y.City Civ.Ct. 1998).

The Respondent's motion to dismiss this Petition is granted. Petitioner's motion for summary judgment is therefore denied. Respondent's Counterclaims are dismissed without prejudice.

The foregoing constitutes the decision and order of this Court.

Dated:June 15, 2011

_________________________________Hon. Marina Cora Mundy

Judge, Housing Court