480 Concord Ave Owner LLC v Wysocki

Civil Court of the City of New York, Bronx County

Decided on July 14, 2026

L&T Index No. 318466/25

Alberto Gonzalez, J.

Papers Numbered

Notice of Motion; Affirmation in Support; Affidavit of Service NYSCEF # 11 -22

Opposition to Motion; Exhibits NYSCEF # 12 -30

Reply Affirmation NYSCEF # 31

Upon the foregoing cited papers, the decision and order on this motion is as follows:

Petitioner 480 CONCORD AVE OWNER LLC ("Petitioner") commenced the instant summary proceeding against Respondents MATILDA WYSOCKI ("Wysocki"), JOHN DOE and JANE DOE (collectively "Respondents") alleging rental arrears of $13,004.90 through June 2025. Wysocki files a pro se Answer asserting: conditions in the unit, partial payment of rent and "Petitioner seeking HRA funds."

NAICA then filed a Notice of Appearance for Wysocki. Thereafter, Respondent filed the instant application seeking inter alia: leave to amend the pro se Answer, summary judgment as to Respondent's rent overcharge claim, treble damages, summary judgment as to the alleged unlawful rent, dismissal of the petition for Petitioner's alleged failure to serve a predicate notice pursuant to the [*2]CARES Act (15 USC § 9058), or in the alternative, leave to conduct discovery ("Respondent's Motion").

In support of Respondent's Motion, Respondent alleges that Petitioner would not be prejudiced by allowing Respondent to amend its answer; that Petitioner sought various Major Capital Improvement ("MCI") increases despite its alleged failure to provide essential services; that Petitioner failed to serve a 30-day notice pursuant to the CARES Act and only served a 14-Day rent demand; and that in the alternative, Respondent should be afforded leave to seek discovery.

In opposition, Petitioner argues that the proposed amendments to Respondent's answer are without merit (which mirror Respondent's basis for summary judgment) and that Respondent has not demonstrated ample need to seek discovery. As part of Petitioner's opposition, Petitioner alleges that Petitioner complied with the CARES Act and did serve Respondent with a 30-day notice pursuant to the CARES Act, which is annexed to Petitioner's opposition as Exhibit "A".

The CARES Act Notice

Service of a proper rent demand is the foundation of a summary nonpayment proceeding. (EOM 106-15 217th Corp. v Severine, 62 Misc 3d 141(A), 112 N.Y.S.3d 861 (App. Term. 2nd. Dep't. 2019). A rent demand is a statutorily required predicate notice that must be served on a tenant before a nonpayment proceeding can commence. (RPAPL § 711(2); Moniaci v Kelly, 73 Misc 3d 127 (A), 152 N.Y.S.3d 216 (App. Term. 2nd. Dep't. 2021). As predicate notices may not be amended, a defective predicate notice destroys the viability of a summary RPAPL proceeding. (Chinatown Apts. v Chu Cho Lam, 51 NY2d 786, 788 (1980]. 1451 Assocs. LP v. Jordan, 88 Misc 3d 1213(A), 248 N.Y.S.3d 449 (NY Civ. Ct. 2025).

For premises which are covered by the CARES Act, a 30-day rent demand is required. (Belplain Realty Co. Inc. v Caro, 85 Misc 3d 1278 (A), 231 N.Y.S.3d 806 (Civ. Ct. Bronx Cty. 2025]; GO HPS LLC v Harris, 86 Misc 3d 1082, 231 N.Y.S.3d 802 (Civ. Ct. Cty. 2025); HP Tyler's Bronx HDFC, Inc. v De La Cruz, NY Slip Op 30376 (U) (Civ. Ct. Bronx. Cty. 2025).

The Notice annexed to Petitioner's opposition as Exhibit "A" states in relevant part: "[p]lease be advised pursuant to Real Property Law §235-e(d) that the Landlord has failed to receive payment of your rent due to date in the sum of $8,466.60 and it is now more than five days since that rent became due. Please make payment to the undersigned Landlord immediately in order to avoid legal [*3]action. Pursuant to the CARES Act of 2020, you are hereby notified that the Landlord may seek to evict you in a summary proceeding, but no such eviction shall take place prior to 30 days from the date of this notice ("Petitioner's Notice").

There is no case law or statutory basis by which Petitioner can combine the 5-day late notice proscribed by Real Property Law §235-e(d) (the "Late Notice") and the 30-day notice required by the CARES Act (the "CARES Notice") into one (1) notice. Initially, both statutes require different timing and have differing purposes. While the Late Notice notifies the tenant of a late payment, the CARES notice is a necessary pre-requisite toward initiating an eviction proceeding.

That is, Petitioner's Notice, cannot serve as both a Late Notice and a Cares Act Notice, they are distinguishable notices with differing purposes. As such, Petitioner failed to properly serve the requisite 30-day rent demand. Respondent's answer is thus amended and the matter is dismissed. The Court does not address the balance of Respondent's Motion.

CONCLUSION

Motion Seq # 1 is GRANTED, and the proceeding is dismissed.

Dated: July 14, 2026

Bronx, New York

Hon. Alberto Gonzalez