Upon the foregoing papers and for the following reasons, the motion by Respondent Yanick Joseph ("Tenant"), for, inter alia, an order dismissing the instant chronic rent delinquency holdover proceeding, is granted, and the proceeding is hereby dismissed. Petitioner Crotona Park Housing, L.P.'s ("Landlord") motion to amend its Notice of Default, is denied.

Pursuant to a Lease Agreement dated January 2, 2007, Tenant has resided in the subject apartment Premises, known as 1679 Southern Boulevard, Apt. 6-B, in the Bronx, New York, while paying the monthly rent with the assistance of a Housing Stability Plus ("HSP") subsidy from the New York State Department of Homeless Services. The HSP program paid for the whole monthly stabilized rent of $765 for the first two years of the Lease Agreement. However, sometime in 2011, Tenant was notified that the HSP program was ending in April due to several State budget cuts. Since then, Tenant has unsuccessfully applied for a Section 8 subsidy, and for public housing under the New York City Housing Authority, while struggling to pay the rent.

As a result, by Notice of Petition and Petition dated November 21, 2013, Landlord commenced the instant chronic rent delinquency holdover proceeding against Tenant to recover [*2]possession of the premises, alleging that she has chronically failed to timely pay the rent and that her lease expired on November 19, 2013. On the first appearance date of December 13, 2013, the matter was adjourned for Tenant to obtain legal counsel and she eventually secured the Bronx Defenders to defend her in this proceeding.

By Notice of Motion returnable June 12, 2014, Tenant now moves for an order dismissing the proceeding pursuant to CPLR 3211(a)(5), and/or for summary judgment in her favor pursuant to CPLR 3212, arguing that the Notice of Termination fails to state a prima facie cause of action for breach of a substantial obligation of the tenancy based on chronic nonpayment of the rent (see Rent Stabilization Code [9 NYCRR] § 2524.3[a]). In the alternative, she seeks partial summary judgment dismissing that part of the Petition which asserts untimely predicate claims barred by the six-year applicable Statute of Limitations of CPLR 213(2), or for permission to file a late Answer pursuant to CPLR 3025(b). In support of her Motion, Tenant argues that Landlord cannot rely on nonpayment proceedings commenced against her over six years prior to this proceeding, nor on two of the listed proceedings which are unrelated and do not involve the subject Premises or Tenant. In any event, the three timely legal proceedings which could be relied upon by Landlord were either settled by stipulations containing repair and habitability issues or concluded after discontinuances. Hence, Tenant asserts that Landlord cannot characterize her as chronically delinquent and the Petition should be dismissed.

In opposition, Landlord moves, by Notice of Motion dated March 31, 2014, for leave to amend the defects in the "Notice to Cure" which incorrectly list Index numbers of two previous proceedings, and asserting that it mistakenly transposed one digit of the Index numbers and should be allowed to amend those "minor defects." Landlord additionally argues that its Predicate Notice sufficiently states a cause of action for a breach of a substantial lease obligation and that triable issues of fact exist as to the basis for this holdover proceeding. This Court disagrees.

"A history of repeated nonpayment proceedings brought to collect chronically late rental payments supports an eviction proceeding on the ground that the tenant has violated a substantial obligation' of the tenancy" (Adams Tower Ltd. Partnership v Richter, 186 Misc 2d 620, 621—622 [AT 1st Dept 2000], citing Sharp v Norwood, 89 NY2d 1068, 1069 [1997]). This proceeding was not brought upon the ground of nuisance, which requires a showing of "aggravating circumstances" (Sharp v Norwood, supra at 1069), but rather upon the allegation that Tenant's long-term, "chronic and systematic" delinquency in timely paying the rent as it became due breached a material leasehold obligation. The number and frequency of nonpayment proceedings are not the only criteria judicially considered when determining whether a substantial obligation has been violated since "the number of nonpayment actions commenced is relevant only in the context of the entire circumstances surrounding the alleged withholding of rent" (Greene v Stone, 160 AD2d 367, 368 [1st Dept 1990]; see Lincoln Place 1226 Prop., LLC v Goins, NYLJ, Oct. 23, 2013, at 30, col 1 [Kings Civil 2013]). The breach must also be firmly documented in the record either by the absence of bona fide habitability claims or any dispute as to the amount of rent owed raised during the proceedings (see Adams Tower Ltd. Partnership v Richter, 186 Misc 2d at 620; Bennett v Mentis, NYLJ, Sept. 13, 2000, at 22, col 1 [AT 1st 2000]). "A temporary financial embarrassment may excuse isolated instances of late payment, but inability to pay cannot excuse chronic and continuing delinquency" (id. [nine nonpayment [*3]proceedings in three years]; see 2564 Co. v D'Addario, 35 Misc 2d 176 [AT 1st Dept 1961] [eleven nonpayments in almost two years]).

Applying these legal principles to the matter at bar, Tenant has demonstrated that Landlord failed to sufficiently establish a prima facie showing of a substantial obligation breach. As a threshold matter, Tenant is correct that out of the seven legal proceedings relied upon by Landlord in bringing this chronic rent delinquency proceeding, two should be barred from consideration under the Statute of Limitations of CPLR 213(2), as having been commenced more than six years prior to this contractual proceeding (specifically, Index Nos. 044229/2007 and 053329/2007) (see Westminster Props. Ltd. v Kass, 163 Misc 2d 773, 774 [AT 1st Dept 1995]). As such, Tenant's motion is partially granted dismissing any consideration of those time-barred proceedings prior to 2008.

Moreover, two of the nonpayment proceedings, Ripple Realty Corp. v Campbell (Index Nos. 043299/2010) and Harrison Circle, LP v LaGuerre (Index No. 02799/2013), which are listed on the Notice of Default as predicates to the instant proceeding do not involve the subject Premises or even the parties. They are totally unrelated to this matter and cannot be considered herein. In its motion to amend, Landlord explains that it mistakenly transposed some of the digits of the Index Numbers and asks for leave to amend its Notice of Default. However, it is well-settled that a predicate notice is a condition precedent to a holdover proceeding which cannot be amended nunc pro tunc (see Chinatown Apts., Inc. v Lam, 51 NY2d 786 [1980]). Indeed, since a predicate notice is not considered a pleading, it is unamendable (see 185 E. 85th St. v Gravanis, NYLJ, Jan. 21, 1981, at 6, col 2 [AT 1st 1981]). As such, the mistaken Index numbers in the Notice of Default cannot be amended, regardless of the de minimis nature of the defect. Therefore, only the additional three proceedings can be legally relied upon in examining the sufficiency of the predicate notice of chronic rent delinquency.

Specifically, the 2008 nonpayment proceedings commenced against Tenant under Index Nos. 014629/2008 and 019581/2008, were both duly answered by her pro se asserting a general denial and an affirmative defense that there were "conditions in the apartment which need[ed] to be repaired." The initial proceeding was discontinued by Landlord prior to any appearance; and the second proceeding, which involved the same arrears, was settled on the first court appearance of April 22, 2008 by a so-ordered Stipulation of Settlement, which provided payment and repairs schedules, including extermination for a mice infestation. Four separate Stipulations followed after Tenant filed three Orders to Show Cause asking for more time, based on disruptions of her public assistance by the Human Resources Administration ("HRA"), and concluded with a vacatur of the Judgment and Warrant on October 9, 2008. Similarly, Tenant asserted a payment defense to the 2013 proceeding, under Index No. 13139/2013, which was settled with an initial Stipulation of Settlement requiring Tenant to pay arrears amounting to $2,954.95 up to April 2013. The payment of the arrears was again delayed due to HRA agency errors and delays as well as Landlord's failure to provide its tax identification number to the agencies involved, but Tenant eventually secured assistance and paid the arrears, prompting the discontinuance of that proceeding on September 30, 2013.

This Court is thus faced with the fact that the 2008 nonpayment cases were either discontinued by Landlord or settled by a Stipulation of Settlement requiring repairs, and that the 2013 proceeding resulted in an interim Stipulation affording time to pay arrears, which were [*4]eventually paid by several agencies. Nor has Landlord refuted any of the evidence of HRA problems with Tenant's case or her habitability issues. The 2008 proceedings were therefore not so unjustified as to warrant a lease violation finding (see Bennett v Mentis, NYLJ, September 13, 2000, at 22, col 1). Only the 2013 proceeding could serve as a proper predicate for chronic delinquency since it resulted in several Stipulations for payment without habitability claims. Even if this Court were to deem the two proceedings with incorrect index numbers as proper predicate proceedings, Tenant has established that by commencing only three prior proceedings Landlord has failed to allege enough frequency and number of proceedings to show that Tenant has substantially violated a material obligation of her seven-year tenancy.

In accordance with the foregoing, Tenant's motion to dismiss the Petition for failure to sufficiently state a cause of action under a theory of substantial obligation breach is granted, and the proceeding is hereby dismissed. Landlord's motion to amend the Notice of Default is denied. The foregoing constitutes the decision and order of the Court.

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Bronx, New YorkJ.H.C.