This nonpayment proceeding was commenced in September 2010 to recover alleged rent arrears. The Notice of Petition, dated September 10, 2010, states that the monthly stabilized rent for the premises is $802.82. The predicate Rent Demand Notice (Rent Demand), dated August 30, 2010, indicates that the monthly rental amount is $719.66 during the same time period and asserts that respondent owes $7,254.16 in rent arrears for the time period October 2009 through August 2010.

On November 15, 2010, the unrepresented respondent entered into a stipulation (Stipulation) in which he agreed to a judgment in the amount of $8,713.64, representing all rent due through November 2010 and a warrant was issued forthwith but execution was stayed to December 15, 2010, to allow respondent to satisfy the judgment.

Respondent now moves, with the assistance of counsel, to set aside the stipulation, for leave to file an amended answer by counsel, for summary judgment to dismiss the petition and for an order limiting petitioner's right to recover rent arrears based upon violation of Local Law 10. The petitioner opposes the motion. For the reasons set forth below, the motion is granted.

Respondent urges that the Stipulation must be set aside as it requires him to pay an amount of arrears that is not owed. In support of the motion respondent submits a copy of the initial lease between the parties for a one year term commencing May 1, 2009 through April 30, 2010, at the monthly rent stabilized rate of $719.66. However, the rider to this lease (Lease Rider), indicates that the respondent would be charges $263.50 for the lease term and the owner would pay the first six months of the rent totaling $1581.00. In May 2010, the respondent singed another one year lease at the monthly rate of $719.66.

Respondent also submits a copy of the New York City Department of Social Services (DSS) payment records which indicate that in June 2009, DSS issued a $430.00 shelter allowance payment. Thereafter, DSS issued a $215.00 monthly shelter allowance payment each month for the time period July 200 through August 2010. The DSS records reflect that all of these payment were issued to the petitioner, were earmarked for specific month and were cashed.

The predicate Rent Demand, alleges a balance due in rent from October 2009, in the amount of $57.56 and claims that $719.66 is due per month from November 2009 through August 2010 for a total of $7,254.16. However, as respondent correctly notes the Rent Demand fails to acknowledge the existence of the Lease Rider which provided that the respondent would not be obligated to pay rent for the time period of May 2009 through October 2009 and that thereafter the monthly rent would be set at the preferential rate of $263.50 until April 2010. In addition, the Rent Demand fails to [*2]provide any information such as a monthly breakdown, nor does it reflect a credit for the DSS shelter allowance payments or confirm whether those payments were applied toward the months intended.

Other than petitioner's counsel's bald assertion that the respondent was given credit for all payments of rent tendered, petitioner offers no proof or facts to rebut respondent's proffer that the amount of arrears sought in the Stipulation is incorrect. In addition, petitioner fails to submit any competent challenge to defeat respondent's showing that the Rent Demand seeks payment of more than what is actually owed and fails to reflect a monthly accounting of arrears which properly credit DSS payments to the months for which they were earmarked.

A rent demand must fairly afford the tenant actual notice of the alleged amount due, of the period for which such claim is made, and of the approximate good faith sum assertedly due for each period. ShopRite Supermarkets, Inc. V. Yonkers Plaza Shopping (29 AD3d 564 [2d Dept 2006]). In this case the demand notice is fatally flawed in that it contains prejudicial errors and contradictions in both the amount of rent claimed due and the time period for which such rent was sought. In like manner, the fact that the rent demand fails to include any information from which it can be gleaned that petitioner gave credit for DSS payments and applied those payments to the months intended calls into question whether the petitioner has made a good faith approximation of the rents due. Scherer, Residential Landlord-Tenant Law in New York §9:27 (2010), St James Courts LLC v. Booker, 176 Misc 2d 693 (Civ Ct NY Co 1998).

The requirement that the petitioner make a proper demand for rent is an essential element of petitioner's cause of action for non-payment of rent. (RPAPL §711[2]). Accordingly, this proceeding is rendered procedurally infirm by failure to satisfy that requirement. As the Stipulation is the product of that failed cause of action, the court exercises its discretion to vacate the Stipulation. 600 Hylan Assoc. v. Polshak, 17 Misc 3d 134[a] (App Term 2d Dept 2007).

Based upon the foregoing, the respondent's motion is granted to the extent of vacating the Stipulation and the final judgment entered pursuant thereto. Respondent is permitted leave to serve and file an amended answer. Respondent's Proposed Amended answer attached as Exhibit "A" to his motion is deemed served and filed nunc pro tunc. That prong of respondent's motion which seeks summary judgment dismissing the petition is granted on the grounds that the requisite predicate Rent Demand is defective and thus the petitioner has no cause of action and the petition must be dismissed.

As the petition has been dismissed the court need not reach respondent's remaining claim for relief.

This is the decision and order of the court. [*3]

DATED: AUGUST 10, 2011_____________________ BROOKLYN, NEW YORKMARIA MILIN, JHC