Recitation, as required by C.P.L.R. § 2219(a), of the papers considered in review of this motion.

After oral argument held on June 5, 2019, and upon the foregoing cited papers, the decision and order on this motion is as follows:

Kings Thorn LLC, the petitioner in this proceeding, ("Petitioner"), commenced this summary non-payment proceeding against Damien Walters, the respondent in this proceeding, ("Respondent") by petition dated May 23, 2018. The petition (par. 8) references a written rent demand. The May 3, 2018 rent demand, ("Demand"), seeks the following rents:

MAY18 $828.40

JUN16 $271.56

JUL16 $824.46

AUG17 $54.80

SEP16 $139.62

It is undisputed that the parties entered into a stipulation on April 5, 2018 under L & T Index No. 073516-2016, which states in relevant part,

"Petition is discontinued without prejudice to the $1978.12 balance through April 2018"

That balance did not include credits for "$214 in April [2018] PA checks or Respondent's February and March rent payments, which were sent to Petitioner by mail." Petitioner's breakdown shows that, in fact, PA checks totaling $215 were received in April 2018 and one $577 payment was received from Respondent on or about April 5, 2018. As such, the balance through April 2018, by Petitioner's own accounting, could be no greater than $1186.12.

After numerous adjournments in this matter, Respondent now moves for dismissal pursuant to CPLR § 3211(a)(7) alleging the rent demand impermissibly "seeks incorrect amounts of rent arrears and rent claims that were disposed of in a prior nonpayment proceeding." Respondent alternatively seeks leave to serve and file an amended answer pursuant to CPLR 3025(b).

DISCUSSION

On a motion to dismiss under CPLR 3211(a)(7), the court is required to afford a liberal construction of the pleading and ascertain whether it alleges facts which fit into any cognizable legal theory (Leon v Martinez, 84 NY2d 83, 87. 614 NYS2d 972 [1984]). A proper demand for rent must fairly afford the tenant, at least, actual notice of the alleged amount due and of the period for which such claim is made. At a minimum, the landlord or his agent should clearly inform the tenant of the particular period for which a rent payment is allegedly in default and of the approximate good faith sum of rent assertedly due for each such period. (542 Holding Corp. v Prince Fashions Inc., 46 AD3d 309, 311, 848 NYS2d 37 [1st Dept 2007] citing Schwartz v Weiss—Newell, 87 Misc 2d 558, 561, 386 NYS2d 191 [Civ Ct, New York County 1976]). A proper rent demand is a prerequisite to maintain a non-payment proceeding. (RPAPL § 711(2); see generally, Chinatown Apts v Chu Cho Lam, 51 NY2d 786, 788, 433 NYS2d 86 [1980]; JD Realty Assocs v Jorrin, 166 Misc 2d 175, 632 NYS2d 441 [Civ Ct, New York County 1995], as mod on app, 169 Misc 2d 292, 650 NYS2d 67 [App Term, 1st Dept 1996]; Vartarian v Brady, 184 Misc 2d 333, 707 NYS2d 285 [Civ Ct, New York County 1999]; EOM 106-15 217th Corp. v Severine, 62 Misc 3d 141(A) [App Term, 2nd Dept 2019]).

Here, excluding May 2018, the Demand seeks a total of $1290.44, which Petitioner acknowledges is $104.32 more than what was actually due at the time. In addition to this almost 10% discrepancy, there are further objections with the Demand. The court agrees that the Demand is confusing and contradictory. For instance, it seeks small balances for September 2016 and August 2017^[FN1] when Petitioner's breakdown shows no payments within those months. As such, Respondent is left to guess where those sums actually accrued from. Perhaps most perplexing, however, is that the Demand does not seek rent for either February or March 2018 when Petitioner apparently did not receive one of those payments as contemplated in the April 5, 2018 stipulation. As at least $577 of the alleged arrears is necessarily from either February or [*2]March 2018 and as the Demand fails to allege same, the Demand is defective.^[FN2] Petitioner's argument that the Demand need only set forth a good faith approximation of the rent due is an incomplete recitation of the case law. (542 Holding Corp. v Prince Fashions Inc., 46 AD3d 309, 311, 848 NYS2d 37 [1st Dept 2007] (tenant must be informed of particular period for which a rent payment is allegedly in default and of the approximate good faith sum of rent assertedly due for each such period [emphasis added])).

The court further notes that in the prior non-payment proceeding, (L & T Index. 73516/2016), the petition sought July 2016 at $326.36 and September 2016 at $824.46 [and August 2016 at $824.46], all flatly contradicting the Demand herein. For these reasons, the Demand is defective, and the proceeding must be dismissed.

CONCLUSION

Based on the foregoing, it is So Ordered, Respondent's motion is granted, and the matter is dismissed without prejudice. The request to serve and file an amended answer is denied as moot. This constitutes the Decision and Order of the court.