Respondent-tenants move for an order, pursuant to CPLR 3211(a)(1), 3211(a)(3), and 3211(a)(7), dismissing the petition.

In June 2005, respondent Pasta Italiana Inc. executed a commercial lease agreement with the petitioner 38-40 Brooklyn Holding LLC wherein the respondent took possession of subject premises at 38-40 Brooklyn Avenue, Massapequa, New York. Respondents Robert Yandolino and Lloyd Braider signed as guarantors of the tenant's obligations.

On December 23, 2009, the petitioner demanded that the respondents pay alleged rent arrears in the sum of $136,494.22 by delivery to each of the respondents a written three days' notice. On December 24, 2009, Thomas DePaola, comptroller of Pasta Italiana Inc., wrote a check for $1,000.00 as a rent payment which was deposited in the petitioner's account on December 30, 2009.

The petitioner commenced this non-payment petition on January 15, 2010 seeking a final judgment of possession and warrant of eviction, awarding the petitioner possession of the subject premises together with a money judgment for $136,494.22.

The respondents argue that the petition should be dismissed on two grounds. The first is that the petitioner failed to duly plead, pursuant to CPLR § 3015(b), that it is a corporation and "specify the state, country or government, by or under whose laws the party was created." However, the contents of the petition are governed by RPAPL § 741 which states that every [*2]petition shall:

1.State the interest of the petitioner in the premises from which removal is sought.

2.State the respondent's interest in the premises and his relationship to the petitioner with regard thereto.

3.State the premises from which the removal is sought.

4.State the facts upon which the special proceeding is based.

5.State the relief sought...

Here, the petitioner describes itself as the owner and landlord of the subject premises. Said description has been held sufficient to state the petitioner's interest in the premises (Dream Team Associates LLC v. Broadway City, LLC 2003 NY Slip Op 50894U [Civ Court, New York County 2003]). The petition satisfies the requirements of RPAPL § 741. The respondents' contention that the dismissal is warranted due to the petitioner's failure to plead, in accordance with CPLR § 3015(b), is without merit.

In New York Practice, Fourth Edition, David D. Siegel writes in Section 574 the following concerning the contents of the petition:

§ 574.Petition in Summary Proceeding

The contents of the petition are set forth in RPAPL § 741. They include allegations of the petitioner's and respondent's interests in the premises and their relationship to one another, a description of the premises, the facts on which the proceeding is based, and the relief sought.

Secondly, the respondents contend that the acceptance of rent after the service of a three days' notice vitiates the notice. The fact that the respondents tendered a check for $1,000.00 which was deposited in the petitioner's amount is not in dispute. However, as Judge Marton wrote in 2-12 Sutter LLC v. Grace Crawford et al., 6 Misc 3d 858, 786 NYS2d 884, (N.Y.Civ. Ct. Kings County, 2004):

A tenant served with a predicate termination notice may defend on the ground that the landlord vitiated the notice by accepting rent for the post-termination period. 205 E. 78th St. Assoc. v. Cassidy, 192 AD2d 479, 598 NYS2d 699 (1st Dep't, 1993), rev'g on opn. of McCooe, J., N.Y.L.J., September 27, 1991, p. 21, col. 4 (App. Term, 1st Dep't). At bottom, this defense is one of waiver Goldman v. Becraft, N.Y.L.J., July 13, 2001, p. 18 col. 2 (App. Term, 1st Dep't).

To make out this defense, respondents had to prove a "voluntary abandonment of a known right" Jefpaul Garage Corp. v. Presbyterian Hosp., 61 NY2d 442, 446, 474 NYS2d 458, [*3]462 NE2d 1176 (1984). That is, respondents had to establish that petitioner chose to abandon its right to terminate respondents' tenancy and to enforce that termination. Such a waiver "is essentially a matter of intent, which 'must be unmistakably manifested, and is not to be inferred from a doubtful or equivocal act' (Ess v. Vee Acoustical & Lathing Contr. v. Prado [Prato] Verde, 268 AD2d 332 [702 NYS2d 38] quoting Orange Steel Erecters [Erectors] v. Newburgh Steel-Products, 225 AD2d 1010, 1012 [640 NYS2d 283])" Becraft, supra .

In the case at bar, the respondents failed to demonstrate that the petitioner's acceptance of the $1,000.00 partial rent payment manifested an intent to abandon its right in bringing a non-payment proceeding. There is no scintilla of evidence to support the respondents' claims.

There is no evidence that an accord and satisfaction had been achieved by the petitioner cashing the $1,000.00 payment from the respondents. An accord and satisfaction is reached under the following circumstances an explained in Landlord and Tenant Practice in New York, Daniel Finkelstein and Lucas A. Ferrara, Section 14:361:

§ 14:361Payment of rent demanded—Accord and satisfaction

The affirmative defense of accord and satisfaction is available when a tenant tenders less than the full amount of rent due in full satisfaction of a rent dispute and the landlord acquiesces to the arrangement. The landlord must be fully informed that the acceptance of the monies will settle or discharge the disputed rent claim.

There is simply no proof that the petitioner was informed that cashing the $1,000.00 constituted an accord and satisfaction.

The respondent's motion is denied in its entirety. This matter is set down for conference with counsel and clients on March 8, 2010 at 11:00 A.M.

So Ordered:

/s/

DISTRICT COURT JUDGE

Dated:February 24, 2010

CC:Todtman, Nachamie, Spizz & Johns, P.C.

Jaspan Schlesinger LLP [*4]

SF/mp