SCOTT A. FAIRGRIEVE
Braff, Harris & Sukoneck, New York, attorneys for petitioner. Ezratty, Ezratty & Levine, LLP, New York, attorneys for respondents.
SCOTT A. FAIRGRIEVE, J.
Respondent has filed a Motion to Dismiss due to this Court's lack of jurisdiction in this matter based upon the Petitioner's failure to provide proper notice concerning payment of commercial real estate taxes and rent. This Court finds that the Respondent has proven that the predicate notice concerning the payment of taxes is defective and that this matter must be dismissed accordingly.
The lease entered into by the parties on or about June 11, 2002 specifies in Section 4.5(c), incorrectly designated as Section F(c), that the tenant must be notified of a default in the payment of taxes by the service of a ten (10) day notice. Respondent's obligation to pay taxes is classified as additional rent. The Petition filed by the Petitioner is seeking both rent and additional charges, including taxes. The Petitioner has included in its Petition a copy of the three (3) day notice sent to the Respondents in this case. However, the lease specifically states that a ten (10) day notice is required when the Petitioner is seeking taxes owed. Therefore, the three (3) day notice provided in the Petition is deficient in that it fails to provide the Respondent with the ten (10) day notice required under the above mentioned lease provision.
The Petitioners served a ten day notice on the Respondents on April 23, 2010. However, the Petitioners failed to include this ten day notice in their Petition filed with the court. In this case, even had the ten day notice been filed with the Petition, the ten day notice itself would be deficient in that it fails to provide a breakdown of monies owed. It is well settled that:
“[A] proper demand for rent must fairly afford the tenant, at least, actual notice of the alleged amount due and of the period for which such claim is made. At a minimum, the landlord or his agent should clearly inform the tenant of the particular period for which a rent payment is allegedly in default ad of the approximate good faith sum of rent assertedly due for each such period,” (Schwartz v. Weiss–Newell, 87 Misc.2d 558, 561;Brusco v. Miller, 167 Misc.2d54, 634 N.Y.S.2d 246).
Here, the Respondents were in fact served with a ten day notice, but the notice failed to include a breakdown of monies owed, which included amounts for taxes owed by the Respondents. Instead, the notice simply included an aggregate sum of monies due to the landlord. Trial courts have advocated an itemization requirement and have dismissed proceedings premised upon rent demands devoid of sufficient particularity (Finkelstein and Ferrara, Landlord and Tenant Practice in New Yori § 14:50 ). A demand for rent that simply provides a lump sum has been held to be defective. In St. James Court, L.L.C. v. Booker, 176 Misc.2d 693, 695(Civ. Ct, Kings Co.1998), the court dismissed the petition holding:
The Petitioner indicated a lump-sum amount for the period of February 1996 through November 1996. The court finds that this type of pleading fails to apprise the Respondent of the correct amount due for each month ... Petitioner's rent demand failed to give Respondent notice of the actual claims and afforded him no opportunity to prepare his defenses to this action.
In this case, the ten day notice failed to include a breakdown of monies owed, which included back taxes, and instead, included only a lump sum of monies owed. The ten day notice in this case is therefore defective.
Based upon the foregoing, the Court need not address any other issues raised by the parties in this matter.
The Petition is hereby dismissed without prejudice.
So Ordered.