The following named papers numbered 1 to 2 submitted on this Motion to Dismiss Petition on March 31, 2016

Petitioner has commenced this nonpayment proceeding to recover possession of the 1st Floor at 49 Water Lane North, Levittown, New York. Respondent allegedly owes Petitioner the sum of $9,970.00.

Respondent moves for dismissal because:

"[t]hat Petitioner failed to demand payment of rent or serve a requisite three days' notice in writing requiring, in the alternative, the payment of the rent, or the possession of the premises as required under RPAPL § 711(2); and the demand or notice was not served upon the Respondent in the manner prescribed under RPAPL § 735."

The Petition states that in paragraph 6 that "Rent has been demanded personally from the Tenant since the same became due."

In support of the motion to dismiss, Respondent submits his affidavit sworn to March 17, 2016, wherein he states that he was not served with a 3 day written notice for rent. He further states, "I have not been served, personally, with any notice or demand to date."

Respondent's attorney argues that failure to meet the requirements of RPAPL § 711(2) for a proper rent demand requires dismissal of the petition, citing Oberlies v. Oliva, 45 Misc 2d 533 (App Div 1964). Respondent seems to be arguing that Petitioner fails to allege a proper rent demand (either oral or written) giving the tenant actual notice of the amount of rent owed and the period for which the claim is made, citing Schwartz v. Weiss-Newell, 87 Misc 2d 558 (Civ Ct [*2]1976).

Petitioner contends that the oral demand made in the case meets the requirements of RPAPL § 711(2).

An oral demand is sufficient if the demand meets the following criteria as expressed in Landlord and Tenant Practice in New York, Finkelstein and Ferrara, § 14:16:

"Unless expressly precluded by the governing agreement a lessor may opt to orally demand the rent. Such election may prove untenable unless:

made by the landlord or the landlord's authorized agent;

directed to the tenant

unequivocal language demanding performance by the tenant is utilized; and

the tenant is apprised of the particular time period for which the rent is claimed to be in default and the approximate good faith amount alleged to be due. A request for "all back rent" may not prove sufficient."

This court holds that the aforesaid oral demand language expressed in the Petition is legally sufficient under RPAPL § 711(2).

In Sella Properties v. DeLeon, 25 Misc 3d 85, 890 NYS2d 254 (App Term, 2nd Dept 2009), the Court held that a demand in a petition is legally sufficient when it is alleged that a demand for rent has been made.

Kulok v. Riddim Company, 185 Misc 2d 195, 712 NYS2d 728 (Civ Ct 2000), is directly on point. The Court ruled that the oral rent demand, similar to the one in the case at bar, was legally sufficient and there was no requirement that any particulars be alleged because specifics were issues to be determined at trial:

"The petitions' statement, "Rent has been demanded personally from the tenant since the same became due," sufficiently pleads the predicate oral rent demand in a summary nonpayment proceeding. Gru Affs., Ex A ¶ 5. Respondent retains a remedy for any claim that the oral rent demands were inadequate under R.P.A.P.L. § 711(2) based on content, delivery, or other circumstances; such claims are issues for trial. They may not be determined based solely on the pleadings. Four Star Holding v. Alex Furs, 153 Misc 2d 447, 590 N.Y.S.2d 667 (App. Term, 1st Dep't 1992); Kiss v. Castellanos, N.Y.L.J., Apr. 21, 1999, at 27, col. 3. Therefore the court denies respondent's motions to dismiss the petitions on this ground at this pleading stage. C.P.L.R. § 3211(a)(7)."

The Court in 25-35 Equity Holdings, Inc. v. Toles, 200 WL 3340344, 2001 NY Slip Op 40036(U), reached the same conclusion:

"Where petitions allege personal or oral demands for rent, those facts, by themselves, [*3]suffice for pleading purposes. See, e.g., Western Hotels Co. v. Ramsay, N.Y.L.J., Dec. 20, 1979, at 10 (App. Term 1st Dep't); Kulok v. Riddim Co., 185 Misc 2d at 198; Kiss v. Castellanos, N.Y.L.J., Apr. 21, 1999, at 27."

This issue is particularly significant to Landlord/Tenant proceedings because it is common practice for petitions to merely state that oral demand has been made without any specifics. This court finds that the allegation that rent has been personally demanded from the Tenant satisfies the requirements of RPAPL § 711(2). Any controversy about whether the oral demand meets the criteria expressed in Landlord and Tenant Practice in New York, supra, can be determined at trial.

Based upon the foregoing, the motion to dismiss is denied. This matter is set down for trial for May 3, 2016 at 9:30 a.m.

So Ordered: