Civil Court of the City of New York, Queens County

Decided on May 21, 2026

L&T Index No. 316192-25/QU

Amira Hassan, J.

[*1]

Recitation, as required by CPLR 2219(a), of the papers considered in the review of motion Seq. 01 and cross-motion Seq. 02:

Papers Numbered NYSCEF Doc. No.

Notice of Motion (Seq. 01), Affirmation(s) in Support, Exhibits 1 11 to 22

Notice of Cross-Motion (Seq. 02), Affirmation(s) in Support and in Opposition to Motion, Exhibits 2 24 to 29

Affirmation in Reply and in Opposition to Cross-Motion 3 31

NYSCEF Court File 1 to 32

Upon the foregoing cited papers, the Decision/Order on Respondent and Petitioner's motions are as follows:

29-28 41st Avenue Owner LLC ("Petitioner") commenced this nonpayment summary proceeding by Notice of Petition and Petition dated October 20, 2025, alleging that Parzinger Design Inc. ("Respondent") defaulted on their promise to pay $5,115.00 in rent pursuant to a written rental agreement. Respondent was allegedly served with a fourteen-day rent demand, incorporated in the petition by reference. The rent demand asked that the sum of $282,850.00, representing rent due and owing from April 2020, through September 2025, be paid, or that Respondent give up possession of the subject premises. The predicate notice warned that failure to comply will result in the commencement of a summary proceeding. Petitioner now seeks a monetary and possessory judgment for the subject premises, located at 29-28 41st Avenue, Apt. 905, Long Island City, New York, 11101, from Respondent and Ann Theroux, John Doe, Jane Doe ("Respondents-Undertenants").

Initially, this case was scheduled to be heard as a commercial landlord-tenant matter, in Part 52, [*2]but subsequently transferred as a residential matter to resolution Part A. Respondent and undertenant Ann Theroux, appeared through counsel, and answered the petition on November 10, 2025. See, NYSCEF Doc. No. 6 and 7. By counsel, Respondents move pursuant to CPLR 3212 for summary judgment and dismissal of the proceeding alleging the predicate notice is incurably defective for multiple reasons. Opposition and a cross-motion were filed by Petitioner seeking leave pursuant to CPLR 3025(b) and (c) to amend the petition nunc pro tunc. The motions were adjourned on consent several times and the matter got transferred to resolution Part F as recently as April 23, 2026. On May 18, 2026, the Court heard argument on the motions and reserved its decision.

Respondent, a corporate tenant of the subject residential apartment being used for dwelling purposes, characterizes the fourteen-day rent demand as defective because the majority (93%) of the arrears demanded accrued under five expired leases and as such on that basis, Respondent argues that no cause of action for possession arising out of those leases currently exists. Respondent relies on the plain reading of RPAPL § 711(2) which authorizes a summary nonpayment proceeding to recover possession where "the tenant has defaulted in the payment of rent, pursuant to the agreement under which the premises are held" [emphasis added] and limits the scope of a nonpayment proceeding (the right to recover rent) to possessory defaults only under an unexpired lease.

Respondent avers the entire rent demand is rendered defective due to Petitioner's Good Cause Eviction Law ("GCEL") (L 2024, ch 56, § 1, part HH) Notice was inaccurate. The GCEL Notice purported that the subject premises is not subject to the law or its protections. Petitioner claimed an exemption in the notice in that the monthly rent is greater than 245% of the fair market rent, as established by the United States Department of Housing and Urban Development ("HUD") and the Division of Housing and Community Renewal ("DHCR"). However, as conceded by Petitioner in their opposition and cross-motion, the notice was filled out incorrectly because 245% of the fair market rent for a studio apartment in Queens County is $5,895.00, while the rent of the subject premises is $5,115.00 and as such, the premises is subject to GCEL.

In opposition, Petitioner asserts their predicate notice is a "good faith" demand where the total rent due and the period in which it became due are clearly outlined. Petitioner alleges the demand is good notwithstanding any errors on the GCEL notice attached, as the notice did not affect Respondent's ability to determine whether the rent arrears were due or how to comply to avoid litigation. Petitioner's cross-motion seeks leave to amend the petition pursuant to CPLR § 3025 to reflect that the premises is subject to GCEL and to correct the contents of the GCEL notice itself. Petitioner contends this correction does not prejudice Respondents in any way but dismissal where there is over three hundred thousand dollars outstanding would be highly prejudicial to Petitioner. Petitioner stands firm that they can properly seek all rent arrears in the petition.

Respondent opposes the cross-motion to amend arguing the mistake on the notice is more than a mere "ministerial" error. Instead, Petitioner failed to meet the notice requirement and misled Respondent into thinking GCEL does not apply. Finally, Petitioner's motion not only seeks to amend the petition but also the rider, which Respondent argues is part of the predicate notice and therefore not amendable. Petitioner did not file reply in further support of the motion to amend.

CPLR § 3212 (b) provides that a motion for summary judgment "shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party." The moving party has the initial burden of making a prima facie showing that it is entitled to summary judgment as a matter of law and that no material issues of triable fact exist. See Friends of Animals, Inc. v Associated Fur Mfrs., 46 NY2d 1065, 1067-68 (1979). "To obtain summary judgment it is necessary that the movant establish his cause of action or defense 'sufficiently to warrant the court as a matter of law in directing judgment' in his favor (CPLR 3212, subd. (b)), and he must do so by tender of evidentiary proof in admissible form." Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). The function of the summary judgment procedure is issue finding, not issue determination. See, Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 (1957).

Respondent cites to several cases where courts have allegedly determined a landlord cannot recover rent under an expired lease. However, upon review, these cases are distinguishable. The tenant in Underhill v Ramos, 49 Misc 3d 155(A) (Appellate Term, 2nd Dep't 2015), was subject to a rent stabilized lease, no rent was received, and no lease was signed after the lease expired for the period in question. These facts are not the same as here, where Respondent does not dispute having had leases for the periods of time no rents were paid, only that those leases expired—as they naturally tend to.

In Stepping Stones Assoc. v Seymour, 8 Misc 3d 138(A) (Appellate Term, 9th & 10th Jud. Dists. 2005), the court found a landlord could not recover unpaid rent under an expired lease. However, context is everything. In Seymour, a warrant issued annulling the landlord-tenant relationship (pre-Housing Stability and Tenant Protection Act of 2019 ("HSTPA")). After which, the landlord offered the tenant a renewal lease and as such, the tenant was in possession of the premises pursuant to that newly issued renewal. The court in Seymour found that tenant's present right to possession "flow[ed] from the renewal lease" and for that reason alone, the landlord was limited to seeking past arrears in a plenary proceeding. Essentially, offering a lease after the relationship ended, created a brand a new tenancy or "agreement under which the premises are held." See, RPAPL § 711(s). Now, issuance of a warrant no longer severs a landlord-tenant relationship, nor has a warrant even issued in this case.

In Shahid v Carillo, 18 Misc 3d 136(A) (Appellate Term, 2nd & 11th Jud. Dists. 2008), the court reiterated that a nonpayment proceeding must be predicated on an "existing unexpired agreement to pay rent" when it dismissed a holdover after it was undisputed a judgment entered in a nonpayment against the same tenant. The court surmised that the existence of a nonpayment case conflicted with commencement of a holdover proceeding. In Carillo, the court cited to the 1954 Court of Appeals Case, United Sec. Corporation v Suchman, 307 NY 48. Like Seymour, the lease pursuant to which the respondent in Suchman entered into possession "terminated by the judgment of foreclosure and the ensuing sale." As such, absent an agreement with the new owner, continued occupancy alone was not enough to "spell out an agreement to pay rent or to create the traditional relationship of tenant and landlord." Id at 53.

Respondent's argument that most of the arrears are somehow "unrelated to Petitioner's possessory claims" is misdirected. This Court is of the opinion that the pertinent part of RPAPL § 711(2) permits a landlord to recover possession and rental arrears where a tenant entered or is in possession of a premises pursuant to a lease or agreement to pay rent in exchange for possession. The defaults on payment of rent in this case stem from several leases. Attached to their motion, Respondent provided copies of the 2020-2021, 2021-2022, 2022-2023, 2023-2024, and 2024 to 2025 leases. It is undisputed that these leases are all "renewals" and explicitly stated that "if the lease is renewed as set forth herein, except as expressly modified herein, all the terms, conditions, covenants and obligations of your lease shall continue in full force and effect without modification or change." See, NYSCEF Doc. No(s). 16 to 21. These renewals leases extended Respondent's right to possession of the premises which was first granted to them by the initial lease. Although Respondent is a "commercial" entity, they have availed themself of residential tenant protections and as such, any arguments as to waiver of prior defaults by executing a new lease, in a commercial context, are not applicable to this case. See, Atkin's Waste Materials, Inc. v May, 34 NY2d 422 (Court of Appeals 1974).

The Appellate Term, Second Department in Fairfield Beach 9th, LLC v Shepard-Neely, held that to maintain a nonpayment proceeding, a current agreement must be in effect, where the premises is a rent stabilized. 77 Misc 3d 136(A) (Appellate Term, 2nd Dep't, 2nd, 11th & 13th Jud Dists. 2022). Shepard-Neely is inapplicable to the present case as the subject premises is not rent stabilized. Additionally, at commencement of this case, there was a renewal lease in effect between the parties. A lower court was reversed for dismissing a nonpayment petition for improperly relying on Shepard-Neely for the same proposition finding that it "has no relevance to this nonpayment proceeding seeking possession of a non-regulated apartment based upon the nonpayment of rent pursuant to an oral agreement" [emphasis added]. See, Alice Formey Irrevocable Trust by Rozier v Edwin, 86 Misc 3d 136(A) (Appellate Term, 2nd, [*3]11th & 13th Judg. Dist. 2025). Arguably, if it were the case that a landlord can only seek rents under the current "agreement" to pay, where respondent is a month-to-month tenant, like the one in Edwin, a landlord would be limited to seeking just one month of rent in the demand, as the "agreement" under which the premises are "held" is only for a 30 day period.

The record does not support that at any point in time, the landlord-tenant relationship was severed, and that Respondent only came into possession of the premises under the current renewal lease. A tenant cannot evade the very essence of a landlord-tenant relationship, the responsibility of paying rent in exchange for possession, just by waiting for their lease to end. Respondent happily retained the benefit of not being subjected to a summary holdover proceeding for the duration of each of the lease terms, yet Petitioner should now lose their ability to collect unpaid rent in a summary proceeding simply because a renewal lease was executed. That would truly be a ludicrous result. If the Court were to rule another way, it would have a chilling effect and disincentive landlords all over the state from offering renewal leases to tenant who may have fallen behind on rent. The Court agrees with this line in the Suchman dissent, that with the "benefits of that relationship went its burdens, including the burden of summary proceedings in event of nonpayment of rent." 307 NY 48, 55 (1954).

It is undisputed that Petitioner improperly plead the GCEL status of the premises and attached an incorrect notice to their petition and rent demand. It is well settled law that leave to amend a pleading "shall be freely given" absent prejudice or surprise resulting from the delay. CPLR 3025 (b); see, Ultimate Health Prods., Inc. v Ameriprise Auto & Home, 65 Misc 3d 153(A) (Appellate Term, 2nd Dep't 2019); Worthen-Caldwell v Special Touch Home Care Servs., Inc., 78 AD3d 822 (2010). In support of their motion to amend the petition, Petitioner's counsel affirms "there have been multiple prior proceedings between Petitioner and Respondents, and it is respectfully submitted that the status of the subject apartment has never been in doubt." See, NYSCEF Doc. No. 25, 48. Petitioner attached stipulations from the two prior proceedings. Upon review, neither prior nonpayment petition under index number 307287-22 nor 316135-23 alleges the premises is subject to GCEL. At the time the prior petitions were filed, GCEL was not in effect. Therefore, it is not clear how the prior petitions are relevant.

Respondent's opposition alleges a GCEL notice "allows the tenant to make an informed decision before an eviction proceeding commences," however, Respondent has not stated how the improper notice altered how Respondent was to proceed when they received the rent demand. Again, this is not a holdover proceeding where Petitioner is alleging grounds to terminate Respondent's tenancy. Respondent's affirmation in support of dismissal fails to articulate the prejudice caused by the initial notice. It merely states that the "exemption identified on the Good Cause Eviction Law notice is invalid." See, NYSCEF Doc. No. 13. Therefore, the Court finds no reason to deny Petitioner's motion for leave to amend the pleadings to reflect that the premises is subject to GCEL protections. The proposed amended petition is deemed served and filed nunc pro tunc. See, NYSCEF Doc. No. 29.

Even with the current amendment, Respondent still received an incorrect GCEL notice with the rent demand. Petitioner's motion only seeks leave to amend the petition and its attachments, including, said notice that would have been provided with the rent demand. The question therefore hinges on whether the court treats the GCEL notice as part of the landlord's rent demand or some other category of notice that, upon correction, would not mandate dismissal. See, Chinatown Apartments, Inc. v. Chu Cho Lam, 51 NY2d 786, 788 (1980) ("the deficiency in the notice deprived petitioner of a predicate for reclaiming possession of the premises"). Petitioner avers the misstatement in the initial notice "was purely ministerial and does not impact Respondents' ability to prepare a defense in this proceeding" or ability to understand Petitioner's claims for rent arrears. Meanwhile Respondent takes the position that the GCEL notice rider to the rent demand is a statutory requirement that cannot later be amended.

The text of the statute clearly requires that notice of GCEL applicability be provided to the intended recipient of a rent demand. The GCEL notice requirements in Real Property Law ("RPL") § 231(c) went into effect August 2024. RPL § 231(c) states that "a landlord [...] shall append to or incorporate into any initial lease, renewal lease, notice required pursuant to paragraph (a) of subdivision [*4]one of § 226-C (Notice of rent increase or non-renewal of residential tenancy), notice required pursuant to subdivision two of Real Property Actions & Proceedings Law § 711 (Grounds where landlord-tenant relationship exists), or petition pursuant to section seven hundred forty one of the real property actions and proceedings law..." Real Property Actions and Procedurals Law ("RPAPL") § 711(2) was amended through 2034 and states in relevant part: "The fourteen-day notice shall append or contain the notice required pursuant to section two hundred thirty-one-c of the real property law, which shall state the following: (i) if the premises are or are not subject to article six-A of the real property law, the "good cause eviction law", and if the premises are exempt, such notice shall state why the premises are exempt from such law... [emphasis added]."

Since its enactment, what may, at first blush, appear to be "black letter law" has unfortunately been neither easily applicable or practical at times. Many of the questions surrounding Good Cause remain issues of "first impression" and there is still no Appellate guidance. GCEL was enacted generally to provide eviction protection to tenants who might have otherwise been subject to "no ground holdover(s)" and provide a way for tenants to question rent increases above a certain percentage in non-regulated apartments. The latter being a possible defense available to tenants subjected to a holdover proceeding where the good cause ground for termination is failure to pay rent. See, RPL 216(1)(a)(i). As it pertains to rent, the statute does not prohibit rent increases, instead, it provides a tenant with a rebuttable presumption that an increase is unreasonable if increased by "an amount greater than the local rent standard, provided further that no rent increase less than or equal to the local rent standard shall be deemed unreasonable." Id. Even if the presumption exists, the court is tasked with an inquiry into all relevant factors and may find that the increase was not actually unreasonable. Again, the statute spells this out in Section 216(1)(a)(i) which pertains to removal of a tenant for not having a lease or if a rental agreement expired. Therefore, whether or not a rent increase is unreasonable is a decision that can only be made by a court. Consequently, even if it is somehow asserted as a defense in a nonpayment, it would not change the amount of arrears sought in a rent demand at the time it is served so long as that was the rent charged by the landlord. The Court notes that Respondent's attorney answer raised issue with the rent demand but did not specifically raise a GCEL issue or allege that the landlord took an unreasonable increase in the most recent renewal.

By requiring landlords to issue a Good Cause notice with initial and renewal leases, the legislature's goal was clearly to put tenants on notice of rights they may have going forward for the duration of their tenancy. This Court is of the opinion that the GCEL notice sent with a rent demand serves the same purposes it would when provided with an initial or renewal lease. Whereas the GCEL notice serves a much more integral purpose when appended or incorporated to a termination notice predicating a holdover, as the applicability of that statute can determine whether or not a landlord has an actual cause of action. The GCEL notice attached to a predicate terminating a tenancy for good cause or alleging inapplicability of the statute may provide the recipient with information necessary to prepare and form a defense in a holdover proceeding. See, Oxford Towers Co., LLC v Leites, 41 AD3d 144 (Appellate Division, 1st Dep't 2007) (A notice must not mislead, confuse the tenant, or hinder the tenant in preparing a defense to the proceeding.)

"A proper rent demand is a statutory prerequisite to a nonpayment proceeding and an element of a landlord's prima facie case." See, EOM 106-15 217th Corp. v Severine, 62 Misc 3d 141(A) (Appellate Term, 2nd Dept, 2nd, 11th and 13th Jud. Dist. 2019). Typically, a proper rent demand is one that "fairly apprise[s] the tenant of the periods for which rent is allegedly due and in what amounts" and "set[s] forth [an] approximate good faith amount of rent owed." Id, citing to Dendy v McAlpine, 27 Misc 3d 138(A) (Appellate Term, 2nd Dep't, 11th & 13th Jud. Dist. 2010) and Pantigo Professional Ctr., LLC v Stankevich, 60 Misc 3d 133(A) (Appellate Term, 2nd Dep't, 9th & 10th Jud. Dist. 2018). Here, the rent demand clearly stated the period(s) for which rent was due and the amount outstanding. As such, it would serve no practical purpose to treat the GCEL notice as part of a landlord's rent demand as whether or not a premises is subject to Good Cause does not change the amount of rent arrears sought or that the amount [*5]that needed to be paid to avoid commencement of a summary proceeding. To draw one last parallel, a landlord is not required to inform a tenant their apartment is subject to rent stabilization, one of the most heavily regulated tenancies that could trigger various defenses to the rent charged, when issuing a rent demand. Instead, the regulatory status is a pleading requirement, and many courts permit amendment of it where it is plead incorrectly in the petition. Given that Petitioner has now properly plead that the premises is subject to GCEL, Respondent's request for dismissal based on an improper rent demand is denied as the Court does not find the GCEL notice attached to the rent demand to be a part of the landlord's predicate notice.

It is SO ORDERED that Petitioner's motion (Seq. 02) is GRANTED. Respondent's motion (Seq. 01) is DENIED. The parties shall appear on June 1, 2026, at 9:30am in Part F, Room 405, for pre-trial conference. The Court is affording Respondent an opportunity to amend their answer to raise any additional defenses as to the newly amended pleadings. See, CPLR 3025 (d). Respondent must file their amended answer by the return date.

It is further ORDERED that Petitioner is directed to serve a copy of this Decision/Order on Respondent along with notice of entry within five days from court upload of this Decision/Order to NYSCEF.

This constitutes the Decision/Order of the court. A copy of same to be uploaded to NYSCEF.

Dated: May 21, 2026

Queens, New York

Housing Court Judge