Civil Court of the City of New York, Queens County, October 24, 2023

Rosenblum & Bianco, L.L.P. for petitioner.

In this nonpayment proceeding seeking rent for the period of June 2021 through February 2023, the petition states that respondent Lucille Stevens has defaulted on a written agreement of unspecified term. Now before the court is petitioner's application for a default judgment following respondent's failure to answer. For the reasons set forth below, the court denies petitioner's request without prejudice to renewal upon providing proof there was an ongoing agreement to pay rent in effect as of commencement (see RPAPL 711 [2]; CPLR 409 [a]).

RPAPL 732 (3) directs the court to "render judgment in favor of the petitioner" in a nonpayment proceeding where the respondent does not answer within 10 days of service. Given this statutory imperative, the Court of Appeals has held that the Civil Court is without discretion to schedule an inquest in lieu of adjudicating a default application as "[t]he statute does not authorize the Judges to fashion additional, individualized protections upsetting the legislative scheme" (Matter of Brusco v Braun, 84 NY2d 674, 682 [1994]). Notwithstanding this mandate, "nothing in the Brusco decision relieves the Civil Court of its obligation to review the papers for facial sufficiency prior to entering a default final judgment" (Kentpark Realty Corp. v Lasertone Corp., 3 Misc 3d 28, 31 [App Term, 2d Dept, 2d & 11th Jud Dists 2004]).

It is axiomatic that a default judgment may not be entered based on facially defective papers (see Merrbill Holdings, LLC v Toscano, 59 Misc 3d 129[A], 2018 NY Slip Op 50410[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2018]). While a non-amendable defect, such as the failure to serve a rent demand, will preclude entry of a default judgment and require dismissal (see Lakeview Affordable Hous., LLC v Turner, 66 Misc 3d 142[A], 2020 NY Slip Op 50163[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2020]), other inadequacies in the papers may be cured upon resubmission (see Sella Props. v DeLeon, 25 Misc 3d 85 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). The court may also request additional proof pursuant to CPLR{**81 Misc 3d at 435}409 (a) "when confronted with such circumstances as a patent insufficiency in [*2]the pleadings and accompanying affidavit" (Matter of Brusco v Braun, 199 AD2d 27, 32-33 [1st Dept 1993], affd 84 NY2d 674 [1994]; see also Morris Hgts. Restoration v Torres, 25 Misc 3d 1233[A], 2009 NY Slip Op 52404[U] [Civ Ct, Bronx County 2009]).

In reviewing petitioner's application, the court is mindful that in a summary proceeding "relief can be granted to a petitioner only where all the elements of the petitioner's cause of action have been made out, a requirement which is sometimes referred to as 'jurisdictional' " (1646 Union, LLC v Simpson, 62 Misc 3d 142[A], 2019 NY Slip Op 50089[U],*2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019] [citations omitted]). One of the necessary elements of a petition is to plead "the interest of the tenant and the facts upon which the proceeding is based" (Migliaccio v Childs, 65 Misc 3d 131[A], 2019 NY Slip Op 51575[U],*1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019], citing RPAPL 741). A petition containing a material omission cannot support entry of a judgment because it fails to adequately apprise the tenant and the court of the basis of the landlord's claim (see Aero Mgt. v Moghadasian, 74 Misc 3d 132[A], 2022 NY Slip Op 50154[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]).

In a nonpayment proceeding one of the core facts that must be pleaded and established is that there was "a rental agreement in effect at the time the proceeding [was] commenced pursuant to which rent is due and owing" (Fairfield Beach 9th, LLC v Shepard-Neely, 77 Misc 3d 136[A], 2022 NY Slip Op 51351[U], *4 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; see also 6 W. 20th St. Tenants Corp. v Dezertzov, 75 Misc 3d 135[A], 2022 NY Slip Op 50529[U] [App Term, 1st Dept 2022]; 265 Realty, LLC v Trec, 39 Misc 3d 150[A], 2013 NY Slip Op 50974[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). Merely alleging that the parties at some point in time executed a lease of indeterminate term is therefore insufficient, standing alone, to warrant entry of a default judgment because such statement does not enable the court to determine if the agreement remained in effect upon commencement of the proceeding.{**81 Misc 3d at 436}^[FN*]

Here, the petition pleads that the parties have entered into a "WRITTEN agreement" without stating its duration. The affidavit of merit provides no further clarity, failing to attach the agreement or state the expiration date, a problematic omission given that the petition seeks rent for 21 months, a period longer than a typical one-year lease. In other words, if the "agreement" referenced in the petition is the parties' initial lease rather than a renewal, it has [*3]potentially expired and there may not have been an agreement to pay rent in effect when this proceeding was commenced. Thus, based on the proof offered in the default judgment application, the court simply cannot discern if petitioner has stated a cause of action under RPAPL 711 (2).

While the failure of petitioner to plead or offer proof of an ongoing contractual arrangement to pay rent is not necessarily so fundamental an omission as to necessitate dismissal, it is a defect nonetheless that requires correction before the entry of a judgment (see Tello v Dylag, 47 Misc 3d 141[A], 2015 NY Slip Op 50617[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2015]; Jeffco Mgt. Corp. v Local Dev. Corp. of Crown Hgts., 22 Misc 3d 141[A], 2009 NY Slip Op 50455[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). Accordingly, petitioner's application for a default judgment is denied without prejudice to renewal upon filing an affidavit of merit that sets forth sufficient information for the court to determine that a rental agreement was in effect as of commencement of this proceeding.