Petitioner commenced this non-payment eviction proceeding against Respondents, seeking possession and a money judgment in the amount of $4,670.00 for alleged non-payment of rent for the months of February and March 2024. Petition ¶ 5. A hearing was held on May 23, 2024.

Respondents leased and continue to occupy Apt. 3N, 2 Main Street, Dobbs Ferry, NY, pursuant to two one-year leases from October 1, 2021 to September 30, 2023. Following a trial on a holdover proceeding in this Court, the Court ordered that Respondents had renewed the lease for an additional one-year term at the rate of $2,335 per month beginning November 2023. The Court dismissed the eviction proceeding but held that Respondents owed rent through the end of January 2024 in the amount of $3,495.00 payable on or before January 17, 2024.

At the summary trial hearing held on May 23, 2024, Dickon Tong, President of Petitioner testified for Petitioner. Petitioner was represented by counsel, Joseph S. Hubicki, Esq. Respondent Kerri Quinn testified for Respondents. Respondents do not have legal counsel.

This first appearance for this proceeding was scheduled for April 18, 2024, at which time Petitioner and counsel appeared but Respondents did not. They were granted a one week adjournment to April 25, 2024. On April 25, 2024, all parties appeared and Respondents orally answered the petition, denied that they had failed to pay rent, and asserted the defense that they had tendered checks for the months of February, March and April, but that Petitioner did not cash the checks. Respondents did not assert any other defense.

On April 25, 2024, trial was scheduled for May 9, 2024, at 3:30 PM. (That time was set because Ms. Vidarte is a school teacher and she asked that the trial begin after school hours.) Due to a scheduling conflict on the Court's part, the May 9 date was adjourned by the Court to May 16, 2024. The May 16 date was adjourned at Respondents' request to May 23, 2024, on the basis that there was illness in the family. Because that was Respondents' third request for an adjournment, the Court stated that no further adjournments would be granted. The morning of May 23, 2024, Respondents asked for another adjournment on the basis that Respondent Vidarte was ill. The request for adjournment was denied. Respondent Quinn appeared at the hearing.

The following documents were introduced into evidence:

Petitioner's Exhibits (admitted): 1 (Deed); 2 (Lease Renewal Offer); 3 (Opinion & [*2]Judgment, Bonham Strand v. Vidarte, Index No. 23100052 (D. F. Village Court, Jan. 4, 2024)); 4 (Rent Ledger); 5 (Letter with certified mail receipt dated Feb. 5, 2024); and 5(A) (Letter dated Feb. 3, 2024).

Mr. Tong testified that Respondents had attempted to pay rent for March and April 2024 by leaving back dated checks in a mail box on the premises. He claimed that they paid in that way in order to avoid being charged late fees. He testified that he had notified Respondents by certified mail that rent must be submitted by bank check and certified mail. Petitioner's Ex. 5 and 5A. On cross-examination, Mr. Tong admitted that he had received and was holding two checks and that he did not cash the checks.

Ms. Quinn was called to testify as part of Petitioner's case. She testified that Respondents had paid rent for February, March and April, by placing the checks in a box labeled "BS" that Mr. Tong had instructed them to use when they first occupied the premises in 2021. She testified that they always paid the rent that way and the checks were always accepted and cashed. She said that they did not pay late and did not back date the checks. She also denied receiving the February 3, 2024 notice letter stating that rent had to be paid by bank check and certified mail.

Ms. Quinn further testified that although they had tendered payment for rent for February and March, she asserted that they should not be required to pay the full amount requested by Petitioner because the apartment was not being properly maintained by Petitioner, there were leaks, mold in the bathroom and a hole in the ceiling. In addition, she claimed that there was insufficient heat during the month of February. She did not have documentation to support these defenses as Ms. Vidarte was preparing the documents for exhibits at trial and Ms. Quinn did not have access to those papers.

Mr. Tong admits that he received two checks from Respondents but has not cashed them. Petitioner contends that he did not have to accept the checks because they were back dated in order to avoid late fees. He claims that by sending Respondents the notice dated February 3, 2024, by certified mail that they were required to make monthly rent payments only with a bank check sent by certified mail.

In the prior action between the same parties, Bonham Strand v. Vidarte, Index No. 23100052 (Dobbs Ferry Village Court), Petitioner put in evidence the initial lease agreement, dated September 22, 2021, Petitioner's Exhibit 2. The Court takes judicial notice of Petitioner's Exhibit 2 from the prior proceeding. Paragraph 3 of the Lease, entitled "Rent, added rent," states: "The rent payment for each month must be paid on the first day of that month at Landlord's address." Nowhere does the lease state that rent must be paid by bank check or sent by certified mail. By contrast, Lease Paragraph 4, entitled "Notices," states in relevant part: "A notice must be sent by certified mail."

Petitioner's February 3, 2024 Notice letter constitutes an attempt to modify the terms of the lease. Aside from the fact that Ms. Quinn denied receiving the February 3, 2024 notice letter, the mere sending of the notice letter by itself was insufficient to require Respondents to pay rent by bank check and by certified mail. Paragraph 28 of the Lease, entitled "Representations, Changes in Lease" states: "This Lease may be changed only by an agreement signed by and delivered to each party." Respondent did not sign any document whereby they agreed to modify the lease to require rent to be paid by bank check and delivered by certified mail. Petitioner cannot unilaterally change a material term of the lease.

When, as in this case, the landlord refuses to accept a tenant's tender of the rent, or [*3]accepts a check but refuses to cash the check, the tenant has a defense to a nonpayment eviction proceeding which, if established, requires dismissal of the nonpayment proceeding. Haberman v. Singer, 3 AD3d 188, 191 (1st Dep't 2004); Anderson Ave. Assoc., L.P. v García, 50 Misc 3d 1065, 1068 (Civ. Ct. Bronx Co. 2015). Here, Mr. Tong admitted that he received two checks but refused to cash them. It is well settled that when the landlord refuses to accept payment he "should not be permitted to predicate proceedings to dispossess the tenant upon the fact that the rent has not been paid." Id. quoting Janes v Paddell, 74 Misc. 409, 415-416, 132 N.Y.S. 379 [App Term, 1st Dept 1911].

Mr. Tong testified that Respondents did not tender rent for February but only for March and April. Ms. Quinn testified that Respondents tendered rent for February, March and April. In the prior action, the Court held that Mr. Tong was not credible and was an unreliable witness. Petitioner's Exhibit 3 at 4. In that case the Court did not credit Mr. Tong's testimony when his version of events differed from either of the Respondents. The Court adheres to that prior finding and does not credit Mr. Tong's testimony that he did not receive checks for both February and March 2024, the non-payment of which provided the predicate for this nonpayment eviction proceeding. The Court credits Ms. Quinn's testimony that Respondents tendered rent checks for February, March and April.

Based upon the foregoing, the Court finds that because Petitioner improperly refused to cash Respondents' checks that were timely tendered, Petitioner had no basis to commence this nonpayment eviction proceeding. Accordingly, the Petition is hereby dismissed.

Based on the foregoing, the non-payment petition for eviction is dismissed. The foregoing constitutes the judgment of the Court.