Oliva v Mohommed

Civil Court of the City of New York, Kings County

Decided on May 19, 2026

LT-319558-25/KI

Turquoise Haskin, J.

This commercial summary non-payment proceeding was commenced by petitioner-overtenant, Juan Olivo ^FN1 ("Petitioner"/ "Mr. Olivo"), to recover rent arrears and possession of 6809 3rd Avenue, left side store, Brooklyn, New York 11220 ("Subject Premises") from respondent-subtenant, Essam'a Mohommed ("Respondent"/"Mr. Mohommed"), who operates a candy store. Petitioner is the owner of Explorer Car Service, Inc., a car service company, which operates adjacent to Respondent's store.

A bench trial was held on April 28, 2026, April 30, 2026 and May 13, 2026. Mr. Olivo [*2]testified that Mr. Mohommed failed to make rental payments under two subleases, and that Respondent owes $35,900 under the first sublease and $9,600 under the second sublease, which was entered in September 2025, after the commencement of this proceeding. To buttress his testimony, Mr. Olivo introduced several documents into evidence, including a rent demand, affidavit of service, rent ledgers and sublease agreements.

Mr. Mohommed, who appeared self-represented and testified by way of an official Arabic-language court interpreter, countered with his presentation of similar documents that were also admitted into evidence.

After a thorough examination of the testimony and documentary evidence, this Court identified several procedural defects and material inconsistencies warranting the dismissal of this proceeding, as set forth below.

THE PREDICATE NOTICE

As a preliminary matter, "a proper rent demand is a condition precedent for maintaining a summary nonpayment proceeding (RPAPL 711[2]). To be effective, the rent demand must '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 asserted due for each such period'" (Whga Renaissance Apts. Lp v. Figueroa, 2026 NY Slip Op 31650[U], 1-2 [Civ Ct, New York County 2026] [internal citations omitted]). "One purpose of the rent demand required by RPAPL 711(2) is to afford a tenant the opportunity to avoid litigation by paying the amount due" (JDM Washington St., LLC v. 90 Washington Rest. Assoc., LLC, 36 Misc 3d 769, 775 [Civ Ct, New York County 2012]).

RPAPL §711(2) requires that a tenant be served with a written rent demand, providing at least fourteen (14) days' notice to make payment or surrender possession of the subject premises. "A proper rent demand is a statutory prerequisite to a nonpayment proceeding pursuant to RPAPL 711(2) and is thus an element of landlord's prima facie case" (Idehen v. Stoute-Phillip, 86 Misc 3d 1202[A], 8 [Civ Ct, Queens County 2025]). A predicate notice cannot be amended; thus, a defect therein requires the dismissal of a summary proceeding (2186 Realty NY LLC v. Martinez, 2022 NY Slip Op 31054[U], 8 [Civ Ct, New York County 2022]).

In the instant case, Petitioner's rent demand, entitled "Notice to Sub-Tenant" was admitted into evidence, as part of his prima facie case (Petitioner's exhibit #3). An examination of the predicate notice, which was dated June 5, 2025, discloses that it is a five-day (5) notice rather than the requisite fourteen-day (14) notice. The notice, in pertinent part, provides, "you are required to pay on or before the expiration of five (5) days from the day of the service of this Notice." This statutory defect is compounded by the corresponding affidavit of service inconsistently styled as a "14 DAY NOTICE." Moreover, Respondent introduced into evidence a separate fourteen-day (14) "Notice to Sub-Tenant," dated June 6, 2025, that he was served (Respondent's exhibit "E"). Pursuant to governing law, the defects and discrepancies between the predicate notices, which were not addressed in Petitioner's testimony, require dismissal of this proceeding.

In addition to the fatal deficiencies cited above, it must be highlighted that both predicate notices represent that Respondent's rent arrears total $35,900, for the period of August 15, 2021 through June 30, 2025, and are premised on a monthly rent of $1,800. However, a review of the rent ledgers attached to both notices discloses that $1,800/month was not sought by Petitioner until September 2024. Both rent ledgers also contain the following statement on page two, "Word agreement was mede [sic] to pay $1000 for one year term wich [sic] is over left [*3]$600+$50 for lease up every year. the [sic] year is over I request full payment." The ambiguous terms in the rental ledgers support this Court's further determination that Respondent was not provided with a good faith sum of the rent due.

THE SUBLEASES

At trial, Petitioner produced two subleases, which Respondent is alleged to have breached. Petitioner offered into evidence a sublease, executed on September 3, 2020, which was signed by Diane Nortesano, President of Petitioner-landlord; Mr. Olivo as President of Explorer Car Service, Inc., the overtenant; and Almoflehi Noman Saleh ("Mr. Saleh"), a prior sub-tenant (Petitioner's exhibit #2). The sublease reflected that Mr. Saleh's monthly rent was $1,600, and would increase by $50 each year. Mr. Olivo testified that Mr. Mohommed took possession of the Subject Premises under this sublease.

On the other hand, Respondent produced a different sublease, executed on November 25, 2020, with the same material terms, but was signed by Diane Nortesano, President of Petitioner-landlord; Mr. Olivo as President of Explorer Car Service, Inc., the overtenant; and Mr. Mohommed as the sub-tenant (Respondent's exhibit "A"). Petitioner did not reconcile this discrepancy in his testimony.

Petitioner additionally testified about a second sublease that was executed with Respondent in September 2025. Petitioner presented an unsigned copy of the sublease; while, Respondent submitted a signed copy, dated September 16, 2025 (Petitioner's exhibit #4; Respondent's exhibit "D"). Notably, the second sublease was signed after Petitioner commenced this proceeding on July 15, 2025. While Petitioner failed to submit the pleadings as part of its prima facie case, a review of the court file reflects that neither the predicate notice nor the Petition references rent arrears commencing in September 2025.

It is well settled that a non-payment proceeding must be predicated on a rental agreement that was in effect at the time the proceeding was commenced (ZB Prospect Realty v. Olenick, 79 Misc 3d 592, 593 [Civ Ct, Kings County 2023]).

Here, Petitioner's rent arrears claim under the September 2025 sublease was not contemplated at the time that the predicate notice was served and this proceeding was commenced, as it was entered into thereafter. This oversight constitutes an additional ground for the dismissal of this proceeding.

Accordingly, based upon the findings herein, it is hereby,

ORDERED, that the instant nonpayment proceeding is dismissed without prejudice .^FN2

This constitutes the Decision and Order of the Court.

Dated: May 19, 2026

E N T E R:

Hon. Turquoise Haskin, JCC