Petitioner, Frederick A. Brown Trust, commenced this nonpayment summary proceeding to recover possession of residential premises designated 216 Spring Street, Room B2, Ossining, New York ("premises") from Respondent, Shawn Carr, and to recover a money judgment for rent due in the amount of $1698.50, together with added rent due, costs and disbursements in the amount of $300.00 and attorneys fees of $750.00 for a total of $2748.50.

On the return date of the petition, Respondent made an oral motion to dismiss it upon the ground that all rooms at the premises are illegal and therefore Petitioner could not collect rent for the same and upon the ground that the Westchester County Department of Social Services ("DSS") had paid $400 in rent for all months claimed except for August 20ll. The Court reserved decision on the oral motion.

A bench trial was held on September 1, 2011. After considering the sworn testimony of the parties, the pleadings and the documents admitted into evidence, the Court makes the [*2]following findings of fact and conclusions of law:

FINDINGS OF FACTS

Petitioner is the owner of the subject premises, which is a boarding house containing nine bedrooms. Respondent has been a tenant since August 2009. He initially rented a room on the third floor for $500 per month. The Village of Ossining Building Department ordered the closure of the third floor of the premises in or about October 2010. As a result, on December 1, 2010, Respondent began to rent a room on the second floor of the premises for $650 per month. Respondent performed maintenance work for Petitioner at $9.00 per hour, and the value of the work was credited toward his December 2010 and January 2011 rent. In January 2011, Respondent applied for assistance from DSS ^[FN1], which began to pay $400 per month toward Respondent's rent in February 2011; Petitioner's testimony that Respondent was to pay the $250.00 difference between the agreed rent and DSS' payment was not contested.

In May 2011, Respondent did not pay either his share of the rent or an alleged $25.00 monthly fee charged for the refrigerator he kept in his room. At that time, he rented a less expensive room for $550.00 per month. He did not pay his $150.00 share of the rent or the alleged $25.00 monthly refrigerator fee for the months of June, July or August 2011, and DSS did not pay its share of the rent for the month of August 2011. Petitioner charged a 5% penalty for late payments.

Respondent did not offer any testimony in his defense, but he entered into evidence the certified records from the Village of Ossining Building Department ^[FN2] that he had subpoenaed. Thereafter, the Court permitted Petitioner to reopen its case and enter into evidence the Three Day Notice and proof of service of the same.^[FN3]

LEGAL CONCLUSIONS

At the close of Petitioner's case, Respondent moved to dismiss the Petition on the grounds that 1) Petitioner failed to establish it owned the premises and 2) Petitioner failed to prove it served the predicate three day notice. Petitioner opposed the motion and argued the three day notice was annexed to the petition with proof of service and ownership was established. The Court reserved decision on the motion.

At the close of all the evidence, Respondent made a motion to dismiss the Petition upon the grounds that 1) Petitioner failed to establish it owned the premises; 2) Petitioner failed to prove it properly served the predicate three day notice and 3) all rooms at the premises are illegal and therefore Petitioner could not collect rent from Respondent. As to service of the three day notice, Respondent argued Petitioner failed to establish due diligence in serving Respondent prior to resorting to "conspicuous place" service. Petitioner opposed the motion and argued the rental was legal; the three day notice was properly served and ownership had been established. The Court reserved decision on the motion.

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 [*3]been made or at least three days' notice in writing requiring either the payment of the rent or possession of the premises has been served upon the tenant in accordance with RPAPL §735. 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 (Civ. Ct., NY County, 1976).

RPAPL §735 (1) provides:

Service of the notice of petition and petition shall be made by personally delivering them to respondent; or by delivering to and leaving personally with a person of suitable age and discretion who resides or is employed at the property sought to be recovered, a copy of the notice of petition and petition if upon reasonable application admittance can be obtained and such person found who will receive it; or if admittance cannot be obtained and such person found, by affixing a copy of the notice and petition upon a conspicuous part of the property sought to be recovered or placing a copy under the entrance door of such premises and in addition within one day after such delivering to such suitable person or such affixing or placement, by mailing to the respondent both by registered or certified mail and by regular first class mail,

if a natural person, as follows: at the property sought to be recovered . . . .

NY Real Property Actions & Proceedings L §735 (McKinney's 2006).

"As a rule, at least two attempts at personal service, one during normal working hours and one attempt when a person working normal hours could reasonably be expected to be home, are required to satisfy the "reasonable application" standard (RPAPL 735 [1]; see Eight Assoc. v Hynes, 102 AD2d 746, 748, 476 N.Y.S.2d 881 [1984], affd 65 NY2d 739, 740, 481 N.E.2d 555, 492 N.Y.S.2d 15 [1985]; Hynes v Buchbinder, 147 AD2d 371, 537 N.Y.S.2d 537 [1989])." Martine Associates, LLC v. Minck, 5 Misc 3d 61, 62 (App. Term, 9th Jud. Dist., 2004). See also, Brooklyn Heights Realty Com v. Gliwa, 92 AD2d 602 (2nd Dept. 1983).

The affidavit of service indicates that one attempt to serve Respondent with the Three Day Notice was made on August 10, 2011 at 12:01 p.m. The day of the week is not listed. The affidavit also indicates that the notice was mailed to Respondent at the subject premises by regular mail and certified mail on August 11, 2011. No evidence was presented that Respondent could have reasonably been expected to be home when the single attempt at personal service was made. The Court therefore finds that the predicate Three Day Notice was not properly served in accordance with RPAPL §735 as required by RPAPL §711 (2).

It is settled law that a defective predicate notice cannot be cured by amendment. Sultanik v. Byrd, 15 Misc 3d 114A (Just. Ct, Town of Ossining, 2007), citing Chinatown Apts. v. Chu Co Lam, 51 NY2d 786 (1980); Martine Associates, LLC v. Minck, 5 Misc 3d 61 (App. Term, 9th Jud. Dist., 2004). As the predicate notice is defective in that it was not properly served and as the defect is not subject to cure by amendment, the Respondent's motion to dismiss the Petition on this ground is granted. Respondent's remaining grounds for dismissal are denied as moot.

The foregoing constitutes the Decision and Order of the Court.

Dated:September 18, 2011

Ossining, New York

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HON. NANCY QUINN KOBA

Town Justice