Recitation, as required by CPLR § 2219(a), of the papers considered in the review of respondent's motion for an order pursuant to CPLR 3211 (a)(2) and/or (7) dismissing petitioner's claim or in the alternative pursuant to CPLR 3025 granting leave to serve and file an amended answer.

Upon the foregoing papers, the Decision/Order on the motion is as follows:

Petitioner commenced the instant nonpayment proceeding by notice of petition and petition. Prior to commencement petitioner served a Five Day Notice demanding $3,168.81 in arrears calculated as follows: a $41.65 balance for September 2016; respondent's share of $83.30 for October and November 2016; $259.74 for December; $372.41for January and February 2017 and $1,956.00 for March 2017. The petition repeats the allegations in the predicate except that it seeks $372.41 for March and $372.41 for April 2017. Respondent interposed an answer alleging, inter alia, that the petition seeks rent which an agency is supposed to be paying.

Respondent now moves to dismiss the petition on the grounds that the predicate notice is defective, that petitioner is suing for the Living in Communities ("LINC") subsidy portion of the rent and that petitioner failed to plead her LINC status.

A proper rent demand is a condition precedent to a nonpayment proceeding. RPAPL § 711(2); See, e.g., Zenila Realty Corp. v. Masterndrea, 123 Misc 2d 1 [Civ Ct NY 1984]. RPAPL § 711(2) provides that a proceeding may be brought where "the tenant has defaulted in the payment of rent, pursuant to the agreement under which the premises are held, and a demand of the rent has been made, or at least three days' notice in writing requiring, in the alternative the payment of the rent, or the possession of the premises, has been served upon him as prescribed in section 735." A proper demand must fairly afford the tenant, at least, actual notice of the period for which the rent is allegedly due as well as the amount claimed. Dendy v. McAlpine, NYLJ, May 27, 2010, at 37 col 6 [App Term 2nd Dept]. It must therefore be a good faith approximation of the rent outstanding at the time of the demand to afford the tenant an opportunity to avoid litigation by paying the amount due. 2229 Creston Partners LLC v. Ramos, 31 Misc 3d 1221(A)[Civ Ct NY 2011]. Defects in the predicate notice are not amendable. Danuluk v. Glashow, 2003 NY Slip Op 51441(U) [Civ Ct NY]. Therefore, an error in the amount of rent and time period for which it is sought, even though made in good faith, requires dismissal of the petition. Jones St. Apts., Inc. v. Overture, NYLJ, April 24, 1996 at 28, col 1 [Civ Ct NY].

Petitioner argues that the monies sought in the rent demand is correct "in that the Petitioner is only seeking the tenant portion of rent." (¶ 16 of Petitioner's Affirmation in Opposition). This however is not the case. It is undisputed that respondent is a participant in the LINC program in which the City of New York ("City") pays $1,583.59 of her $1,956.00 monthly rent and respondent is responsible for the $372.41 balance. Landlords who participate in the program are required to sign a Landlord Statement of Understanding in which they acknowledge that the program tenant is responsible for paying them a portion of the monthly rent and that the City will pay the difference. (Exhibit G of the Motion). These landlords also execute a rider wherein the tenants authorize the City to pay the portion of the rent over and above his or her monthly share, directly to the landlord. (Exhibit H). The landlords also warrant that they will not demand, request or receive any payments from the tenants beyond that authorized in the lease and rider. Despite this, the Five Day Notice demands that respondent pay the entire contract rent for March 2017. This renders the notice fatally defective. The fact that the petition subsequently seeks $372.41 for March does not change this fact.

Based on the foregoing, the motion is granted and the petition dismissed. The Court need not reach the other arguments raised by respondent.

This constitutes the decision and order of the Court.