Civil Court of the City of New York, Bronx County, August 15, 2018

Jason D. Boroff & Associates, PLLC (Madalina Danescu of counsel) for respondent.

BOOM!Health Legal Services (Bridget Mullaly of counsel) for petitioner.

The court has before it three separate motions, Nos. 1 and 2 by respondent for, inter alia, leave to serve and file an amended answer or for dismissal of the proceeding because the named petitioner is not the property owner nor a party entitled to possession of the subject apartment. Motion No. 3 is a cross motion by petitioner to nunc pro tunc amend the caption of the petition and notice of petition to reflect the proper party petitioner as "Housing Works Lyman Prospect Housing Development Fund Corporation."

Though noted above is a surreply submitted by respondent, which petitioner rejected in writing, the court has not taken that surreply into account as no permission for submission of surreply papers was given and petitioner was well within its right to reject them.

For the reasons set forth below the court grants respondent's first motion and dismisses the within proceeding as named petitioner lacks the capacity to sue respondent for unpaid [*2]rent/possession of the subject apartment. All other issues raised in the three motions are rendered moot by this determination.

First, and as petitioner argues, albeit only for itself, leave to amend pleadings should be freely granted as long as there is no prejudice or surprise to the other party. (See MSG Pomp Corp. v Doe, 185 AD2d 798 [1st Dept 1992]; Jackson v New York City Hous. Auth., 88 Misc 2d 121 [App Term, 1st Dept 1976]; Paikoff v Harris, 185 Misc 2d 372 [App Term, 2d Dept 1999], citing Villas of Forest Hills v Lumberger, 128 AD2d 701 [2d Dept 1987], Birchwood Towers #2 Assoc. v Schwartz, 98 AD2d 699, 700 [1983], and Lin v Rivas, NYLJ, May 26, 1998 at 30, col 5 [App Term, 2d & 11th Jud Dists 1998].) The Court, in Villas of Forest Hills v Lumberger, cited Birchwood Towers #2 Assoc. v Schwartz in finding that the failure to allege that the apartment is subject to the New York City Rent and Rehabilitation Law, the Rent Stabilization Law or neither law will not deprive the court of jurisdiction as the petition may be amended, though pleading regulatory status and compliance with the appropriate statutes and codes was necessary to grant the requested relief (see 251 E. 119th St. Tenants Assoc. v Torres, 125 Misc 2d 279 [1984]; Darnet Realty Corp. v Markley, 63{**61 Misc 3d at 741} Misc 2d 29 [1970]; United Institutional Servicing Corp. v Santiago, 62 Misc 2d 935 [1970]).

So, were this just a situation of amending the pleadings, here the petition and notice of petition, petitioner would be correct (the court notes that petitioner vociferously opposed the same relief requested by respondent in wanting to amend her answer and would say to that what's good for the goose is also good for the gander), but here petitioner wants to amend its rent demand, the predicate notice or condition precedent to the institution of a summary nonpayment proceeding in Housing Court. That is a bird of a different feather. Not one case cited by petitioner speaks to amending a predicate notice; in fact, many of the cases cited by petitioner don't even speak to summary proceedings in Housing Court. This court can find no case that allows for the amendment of a predicate notice. Since, under RPAPL 711 (2), a proper rent demand is a condition precedent to maintaining a nonpayment proceeding, the lack of a proper one must be fatal to maintaining such a proceeding.

The standard for assessing the adequacy of a notice is reasonableness in view of all attendant circumstances. (Hughes v Lenox Hill Hosp., 226 AD2d 4, 17 [1st Dept 1996].) The purpose of the rent demand is not only to inform the tenant that an eviction proceeding will be commenced if payment is not made, but to allow the tenant an opportunity to make payment as required by the demand. Furthermore, if the demand is inaccurate, the tenant is not in a position to remedy the default and make payment. (Shimon Realty, Inc. v Stosko, NYLJ, June 24, 2002 at 24, col 6 [Civ Ct, Kings County 2002].) The demand must also clearly inform the tenant of the particular period for which a rent payment is allegedly in default and the approximate good faith sum of rent allegedly due for each period so as to permit the tenant to adequately defend the action and prevent forfeiture of the leasehold. (Schwartz v Weiss-Newell, 87 Misc 2d 558, 561 [Civ Ct, NY County 1976].) Unsaid is that it must also accurately advise the respondent to whom that payment is due or to whom it should be made. Here, the rent demand is made by Fitzpatrick Housing Development Fund Corporation, an entity that both sides agree does not own the subject property and thus to whom payment of rent arrears should not be made.

The case law is very clear that a predicate notice cannot be amended. (Chinatown Apts. v Chu Cho Lam, 51 NY2d 786, 787 [1980]; Oppenheim v Spike, 107 Misc 2d 55 [App Term, 1st{**61 Misc 3d at 742} Dept 1980]; 300 W. Realty Co. v Wood, 69 Misc 2d 580 [Civ Ct, NY County 1971], affd 69 Misc 2d 582 [App Term, 1st Dept 1972]; William Manor Assoc. v Gregory, NYLJ, May 4, 1988 at 13, col 3 [App Term, 2d Dept 1988] ["(w)here a proceeding is brought by an improper party, the defect is not curable and the petition must be dismissed"], citing Spike, and Zisser v Bronx Cigar Corp., 91 Misc 2d 1025 [Civ Ct, Bronx County 1977]; see also MSG Pomp; East 209th Street Realty LLC v Nettles, Civ Ct, Bronx County, Apr. 5, 2016, McClanahan, J., L & T index No. 67175/15.) The failure to properly name the owner as petitioner is not a technical defect; it is a violation of RPAPL 721 (1) and 741 (1). (See 265 Bedford Realty Corp. v Hossein, Civ Ct, Bronx County, Oct. 10, 2014, Marin, J., L & T index No. 010307/14.)

Further, petitioner offers no excuse as to why an improper party petitioner was named. Both sides missed the fact that the deed was transferred from Fitzpatrick to another entity on November 5, 2012, not in 2014, when an amended deed was filed. It was then transferred by this intervening owner to the current owner, Housing Works Lyman Prospect Housing Development Fund Corporation, by deed dated January 29, 2014. So, when the within proceeding was instituted in the name of Fitzpatrick as petitioner, Fitzpatrick had not been the owner of the property for five years. That is not a technical mistake, that is just plain sloppy work.

Accordingly, the respondent's first motion is granted, the proceeding is dismissed without prejudice to institution of a new proceeding upon proper papers.