Recitation, as required by CPLR 2219 (a) of the papers considered in review of this motion by NYSCEF Doc Nos: 18-31, 47-48, 59-80.

This is a nonpayment proceeding commenced against respondent in the amount of $4,551.99, $437.00 of which is attributed to late and legal fees. The building is a cooperative housing corporation, and respondent is a shareholder pursuant to a proprietary lease.

The first appearance of the proceeding was on June 21, 2022. The purpose of that appearance was to connect respondent with a legal services provider pursuant to Administrative Code of the City of NY § 26-1301, et seq. Respondent met with the Legal Aid Society ("LAS") and completed an intake interview. That same day, the case was transferred to a resolution part judge and scheduled for an appearance on July 18, 2022. On July 14, 2022, LAS filed a notice of appearance. Also on July 14, 2022 respondent tendered to petitioner (and petitioner accepted) $4,114.99. The amount tendered represented all past due maintenance claimed in the petition, which left the claimed late and legal fees unpaid; thus, this payment only partially satisfied the amount demanded.

On July 18, 2022, LAS informed the court and petitioner that respondent previously filed an Emergency Rental Assistance Program ("ERAP") application on January 5, 2022. The ERAP application had the effect of immediately, and statutorily, staying the proceeding until the Office of Temporary and Disability Assistance ("OTDA") rendered a determination on respondent's [*2]application. (L 2021, ch 417, § 2, part A, § 8, as amended by L 2021, ch 417, § 2, part A, § 4; Admin Order of Chief Admin Judge of Cts AO/34/22.)

On October 13, 2022, petitioner received email correspondence from OTDA informing petitioner that respondent's ERAP application had been denied because "[c]o-op shareholders are not eligible for ERAP to cover monthly co-op/maintenance fees." (NYSCEF Doc No. 9, petitioner's exhibit A, email dated October 13, 2022.) On November 21, 2022, petitioner moved to vacate the ERAP stay based on this determination, which motion was returnable December 7, 2022 at 9:30 a.m. (NYSCEF Doc No. 7, notice of motion [sequence 1].) In the late afternoon of December 6, 2022, respondent filed opposition to petitioner's motion to vacate the stay and attached as an exhibit a notice that respondent had filed an appeal of the denied ERAP application. (NYSDEF Doc No. 16, respondent's exhibit F.) Respondent also cross-moved to dismiss the proceeding on the basis that she had satisfied that part of the petition that she was obligated to pay (i.e., maintenance only). (NYSCEF Doc No. 18, notice of motion [sequence 2].) Petitioner commendably opposed the motion in time for the December 7, 2022 argument. By decision and order dated December 12, 2022, this court further stayed the proceeding due to respondent's appeal of her denied ERAP application. (NYSCEF Doc No. 31, December 12, 2022 Decision/Order.) On December 21, 2022, OTDA affirmed its decision denying respondent's ERAP application. Respondent's cross-motion remained pending.

On December 22, 2022, petitioner filed another motion, made returnable January 6, 2023, seeking to vacate the ERAP stay on the basis that OTDA denied respondent's appeal. (NYSCEF Doc No. 32, notice of motion [sequence 3]; NYSCEF Doc No. 34, appeal denial notification.) That very same day, respondent submitted a new application for ERAP funds, despite OTDA's finding that she was not eligible for the program as a cooperative corporation shareholder. No facts upon which the OTDA determination had been made had changed, and the more appropriate action would have been to file an Article 78 proceeding against OTDA.^[FN1]

In addition, while respondent's cross-motion to dismiss the petition remained pending, respondent's counsel advised her to pay petitioner $437.00, which equaled the remaining amount [*3]of late and legal fees claimed in the petition. It is not disputed that the check was issued on January 3, 2023 and credited to petitioner's account that same day. (NYSCEF Doc No. 52, petitioner's exhibit B to motion [sequence 4].) Respondent then filed opposition on January 4, 2023 to petitioner's motion to vacate the ERAP stay, asserting that another ERAP application had been filed.

On the January 6, 2023 return date on petitioner's motion, the court prevailed on the parties to agree that no stay would be imposed by the filing of a new ERAP application and respondent's attorney informed the court that respondent would not be filing an Article 78 proceeding against OTDA. The parties agreed that respondent would file reply to petitioner's opposition to her cross-motion to dismiss the petition. Given the lateness of the cross-motion and the increasingly complicated nature of the proceeding, the court allowed petitioner to file a sur-reply and the proceeding was adjourned to February 1, 2023. (NYSCEF Doc No. 48, so-ordered stipulation.) On January 18, 2023, petitioner moved to amend the petition to date. (NYSCEF Doc No. 49, notice of motion [sequence 4].) The motion is supported by a sworn affidavit from an agent of petitioner and a current rent arrears breakdown. On January 30, 2023, respondent filed opposition to petitioner's motion to amend, and petitioner filed reply on January 31, 2023. (NYSCEF Doc Nos. 70, 80.) The parties argued the respective motions on February 1, 2023 and the court reserved decision.

RPAPL 731 (4) provides: "In an action premised on a tenant defaulting in the payment of rent, payment to the landlord of the full amount of rent due, when such payment is made at any time prior to the hearing on the petition, shall be accepted by the landlord and renders moot the grounds on which the special proceeding was commenced (emphasis added)."

RPAPL 702 provides:

1. In a proceeding relating to a residential dwelling or housing accommodation, the term "rent" shall mean the monthly or weekly amount charged in consideration for the use and occupation of a dwelling pursuant to a written or oral rental agreement. No fees, charges or penalties other than rent may be sought in a summary proceeding pursuant to this article, notwithstanding any language to the contrary in any lease or rental agreement (emphases added).

RPAPL 702 was later amended to add a new subsection (2) which creates and exception for cooperative housing corporations:

2. This section shall not apply to a summary proceeding in which the parties are a cooperative housing corporation, other than a cooperative housing corporation subject to the provisions of article two, article four, article five or article eleven of the private housing finance law, and a tenant who is a dwelling unit owner or shareholder of such corporation, provided that the proprietary lease or occupancy agreement between the cooperative housing corporation and the tenant provides for fees, charges, penalties or assessments other than rent to be recoverable in such a proceeding (emphases added).

Respondent argues that "prior to the hearing of the petition" must be interpreted broadly in order to "uphold crucial tenant protections codified by the HSTPA." (NYSCEF Doc No. 53, respondent's attorney's affirmation in reply ¶ 15.) Respondent "urges the court [to] expansively interpret the word 'hearing' to mean any time before trial, as is consistent with the court's general practice . . . . (emphasis added)." (Id.)^[FN2] Thus, respondent argues that the second payment of $473.00 was made prior to trial (though not prior to the first appearance in court), and, therefore, respondent timely satisfied the petition. Respondent's attorney acknowledges that it was at this juncture that "the petition was fully satisfied." (NYSCEF Doc No. 53, respondent's attorney's affirmation in reply ¶ 6.) In support of this position, respondent cites to City of New York v Candelario, 156 Misc 2d 330 (App Term, 1st Dept 1993), affd in part, revd on other grounds, 223 AD2d 617 (1996), and its progeny, which she argues stands for the proposition that the language in RPAPL 743, regarding when an answer in a holdover proceeding must be filed, has been interpreted to mean an answer may be filed any time prior to trial.^[FN3]

In turn, petitioner argues that language in RPAPL 731 — "prior to the hearing of the petition" —should be interpreted narrowly to mean the first date the petition appears on the court's calendar (in this case, June 21, 2022.) Petitioner further argues that the $4,114.99 payment made on July 14, 2022 did not fully satisfy the petition, but even assuming arguendo that it had, it was not made "prior to the initial hearing date" in court. (NYSCEF Doc No. 29, petitioner's attorney's affirmation ¶¶ 7-8.)

In its sur-reply, petitioner indicates that RPAPL 743 explicitly excepts nonpayment [*4]proceedings,^[FN4] and that RPAPL 732 (2), which relates specifically to nonpayment proceedings, distinguishes between a hearing and a trial. (NYSCEF Doc No. 59, petitioner's attorney's affirmation 24.) Thus, petitioner argues that the petition was not fully satisfied prior to June 21, 2022, the first hearing date of the petition. Petitioner argues that if the court were to disregard the distinction between "hearing" and "trial" in RPAPL 732(2), and find that the word "hearing" under RPAPL 731(4) includes the actual trial, such a "determination would have disastrous results." (Id. ¶ 30.)

Here, respondent did not pay the $4,114.99 in maintenance arrears sought in the petition prior to the first appearance, and the proceeding was adjourned for her to seek counsel. At the second appearance (respondent's first with counsel), respondent did not claim she satisfied the petition by paying the maintenance arrears. Instead, the proceeding was automatically stayed when the pending ERAP application was disclosed.

When petitioner sought to vacate the ERAP stay upon the denial of her ERAP application, respondent cross-moved to dismiss based on satisfaction of the petition. Had the normal course of this proceeding not been upended by the application for ERAP which occasioned an automatic stay, a second motion to vacate the ERAP stay which was denied as an appeal was pending, and respondent's request to further stay the proceeding by filing another ERAP application just prior to oral argument, this court would have denied respondent's motion to dismiss based on full satisfaction of the petition for the following reasons:

The petition clearly pleads a cognizable cause of action. In evaluating the sufficiency of a pleading, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true and determine only whether the facts as alleged fit within any cognizable legal theory. (Leon v Martinez, 84 NY2d 83, 87 [1994].) Petitioner need not prove at the pleading stage that it is entitled to claim late and legal fees from a shareholder. (See EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11 [2005] ["Whether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss."]; Rovello v Orofino Realty Co., 40 NY2d 633, 635 [1976] ["[U]nless the motion to dismiss is converted by the court to a motion for summary judgment [a plaintiff] will not be penalized because he has not made an evidentiary showing in support of his complaint."]) Pleading that respondent is a shareholder in a cooperative corporation is sufficient to alert the court that late and legal are claimed based on the tenant's status as a shareholder, and, accordingly only full payment of the amount claimed in the petition would "render moot the grounds on which the special proceeding was commenced." (RPAPL 731 [4].) Thus, respondent's partial payment of $4,551.99 would not have fully satisfied the petition, even if it had been tendered prior to the first hearing date of June 21, 2022.

Clearly, the petition is now satisfied and has been satisfied prior to petitioner's motion to [*5]amend the petition.^[FN5] However, arguing that the petition had already been satisfied, while concomitantly paying the remaining amount sought in the petition two and a half weeks after receiving petitioner's opposition to her cross-motion and two days after petitioner moved a second time to vacate an ERAP stay, conveys the impression of gamesmanship and an attempt to have one's cake and eat it, too, under the guise of vigorous advocacy. (See e.g. FS 41-45 Tiemann Place LLC v Estrella, 38 Misc 3d 29, 30 [App Term, 1st Dept 2012] [discouraging "gotcha litigation tactics"].)

Moreover, the court is troubled by respondent's eleventh-hour attempt to further stay the proceeding and its resolution by casually filing a second ERAP application rather than an Article 78 to challenge the final determination of OTDA.^[FN6] "ERAP was intended as a potential shield to assist tenants to obtain financial assistance with the possibility of maintaining their tenancy. It was never intended as a sword[.]" (Ami v Ronen, 75 Misc 3d 335, 339 [Civ Ct, Kings County 2022].)

Thus, respondent's cross-motion is denied and petitioner's motion to amend the petition to include subsequently accruing arrears up to the date of the motion is granted. Notably, respondent has not claimed any prejudice that would result from this amendment to the petition. (NYSCEF Doc No. 20, Jamshidi affidavit.) (Mezzacappa Bros., Inc. v City of New York, 29 AD3d 494 [1st Dept 2006]; Valdes v Marbrose Realty, Inc., 289 AD2d 28, 29 [1st Dept 2001].)

It is well-settled that leave to amend a pleading is freely granted under CPLR 3025 absent a showing of prejudice or surprise. (Id.) While a motion to strike any defenses would be premature at this juncture, petitioner opposes the interposition of certain defenses, and, in the interests of judicial economy, the court will consider and rule on each objection. Respondent's motion for leave to serve an amended answer is granted in part and denied in part.

At the outset, the court notes that respondent's motion to interpose her first objection in point of law and first affirmative defense is denied as disposed by this decision and order. Respondent no longer seeks to interpose her second objection in point of law related to improper service of the rent demand and her motion to interpose that jurisdictional defense is denied as abandoned. Petitioner does not object to respondent's proposed second affirmative defense and counterclaim based on petitioner's alleged breach of the warranty of habitability, thus respondent's motion to interpose the second affirmative defense and related counterclaim is granted. (RPL 235-b.) Respondent's motion to interpose the third affirmative defense is denied, as she does not deny that her assertion that petitioner breached the covenant of quiet enjoyment is meritless.

Respondent's motion to interpose her third objection in point of law is denied as the court finds that the defense has no merit. Here, a "fifteen-day notice to tenant," also captioned "rent demand," was mailed on March 31, 2022, demanding payment by April 15, 2022. (NYSCEF Doc No. 1 at 4, affidavit of service of rent demand.) Citing to ATM One v Landaverde, 2 NY3d 472 [2004], respondent defends that the petition must be dismissed for the same reasons set forth in Landaverde.

In Landaverde, the tenant sought dismissal of a holdover petition because they had not received 10 days to cure the alleged lease violation, where the landlord sent the predicate notice to the tenant by mail. The Court of Appeals held that while the Rent Stabilization Code ("RSC") did not define when the mailing of a predicate notice is deemed to have been served, it "best effectuates the regulatory purpose" to add an additional five day to the 10-day cure period when a notice to cure is served by mail to ensure that the tenant benefits from the full cure period. (Id. at 477-478.) Eventually, 9 NYCRR (RSC) § 2524.3 (a) was amended to codify the Landaverde holding regarding notices to cure, but no other predicate notice service requirement was amended. Similarly, had the legislature intended such a requirement in the context of a rent demand served pursuant to RPAPL 711 (2), it could have amended the statutes when it passed the Housing Stability and Tenant Protection Act of 2019 which comprised numerous changes to Article 7 of the RPAPL. However, neither RPAPL 711 (2) nor RPAPL 735 require the addition of five days to the time to pay arrears claimed in a rent demand if the notice is served by a method that requires a mailing.

The service requirement in RPAPL 711 (2) states that a summary proceeding for nonpayment of rent may be maintained if a "written demand of the rent has been made with at least fourteen days' notice . . . [and] has been served . . . as prescribed in [RPAPL 735]." RPAPL 735 (b) (2) requires filing proof of service of the notice of petition and petition with the court within three days when a petition is served in any manner that requires a mailing; however, there is no method, process, or requirement for filing proof of service of the rent demand within three days of mailing the demand and prior to the commencement of the proceeding. Thus, while RPAPL 711 (2) requires service pursuant to RPAPL 735, given the impossibility of complying with RPAPL 735, the requirement that a demand notice be served pursuant to that statute is presumed to ensure that a tenant, like in Landaverde, actually receives the demand notice and the full benefit of the statute. In this way, the legislature has sought to effectuate its intent that a tenant be afforded 14 days to avoid litigation.

Here, respondent had 14 days from the mailing of the demand notice on March 30, 2022, and more than two and a half months prior to the first appearance of the proceeding on June 21, 2022 to tender the amount demanded. That no attempt to pay was made any time prior to July 14, 2022 renders the objection immaterial as to any ambiguity that may have been caused by not adding five days to the date of mailing to the due date for payment. (See 105th Street v. 105th Pizza, NYLJ, Oct. 5, 1994, at 22 col 3.) Moreover, the payment that was eventually made was for less than that demanded.

Finally, respondent does not cite to any provision of the lease that would require the addition of five days to the mailing of a notice. In fact, the proprietary lease states: "Any notice [*7]by or demand from either party . . . shall be duly given only if in writing with a copy sent by regular mail . . . . Notices or demands shall be deemed given on the date when mailed . . . . (emphasis added)." (NYSCEF Doc No. 58, respondent's exhibit E, proprietary lease.) Here, the affidavit of service alleges conspicuous service and mailing of the rent demand took place on the March 31, 2022 requiring payment by April 15, 2022. (NYSCEF Doc No. 1 at 4, affidavit of service of rent demand.) Thus, by the terms of the lease, respondent received the full 14 days to pay the claimed arrears to avoid litigation.

Petitioner objects to respondent's proposed counterclaim seeking an order to correct the conditions alleged in the proposed amended answer. However, this counterclaim is not devoid of merit. New York City Civil Court Act § 110 (c) provides that "[r]egardless of the relief originally sought by a party the court may recommend or any remedy, program, procedure or sanction authorized by law for the enforcement of housing standards, if it believes they will be more effective to accomplish compliance or to protect and promote the public interest." While there are no violations recorded against the subject premises aside from common area violations, the Housing Maintenance Code provides:

"In any action or proceeding brought in the housing part of the New York city civil court, the court, on motion of any party or on its own motion, may issue such preliminary, temporary or final orders requiring the owner of property or other responsible person to abate or correct violations of this code, or to comply with an order or notice of the department, or to take such other steps as the court may deem necessary to assure continuing compliance with the requirements of this code[.]"

(Administrative Code of City of NY § 27-2121.) As interpreted by the courts, "[t]his means that an order to correct may issue once a violation is placed by the City, or by the court after a hearing (emphasis added)." (See Mite v Pipedreams Realty, 190 Misc 2d 543, 544 [Civ Ct, Bronx County 2002]; Corzo v David, — NYS3d —, 2022 NY Slip Op 22404, *1 [Civ Ct, Queens County 2022] [tenant's testimony was insufficient for the court to find a violation in the absence of one placed by a government agency]; 351-359 E. 163rd St. Tenants Assoc. v E. 163 LLC, 70 Misc 3d 1212 [A], 2021 NY Slip P 50055 [U], *7 [Civ Ct, Bronx County 2021] [tenant established violation for lack of heat through testimony].) Accordingly, respondent's motion to amend the answer to interpose her counterclaim for an order to correct is granted.

Accordingly, it is

ORDERED that respondent's cross-motion to dismiss is DENIED; and it is further

ORDERED that petitioner's motion to amend the petition to include subsequently accruing arrears through January 31, 2023 is GRANTED; and it is further

ORDERED that respondent's motion to amend her answer is GRANTED to the extent set forth above; and it is further

ORDERED that respondent shall serve petitioner with an amended answer that comports with this decision and order within 10 business days.

The parties are to appear in Part F, Room 523 on February 28, 2023 at 2:15 in person for settlement or trial.

This constitutes the decision and order of the court.