Civil Court of the City of New York, Queens County, October 18, 2019

New York Legal Assistance Group, New York City (Elizabeth Harrington of counsel), for respondent.

Matilde Pena & Associates, P.C., Mount Vernon (Matilde Pena of counsel), for petitioner.

The decision and order on respondent's motion is as follows:

Procedural History

The immediate nonpayment proceeding was commenced by notice of petition and petition dated April 3, 2019. The petition alleges that respondent is cooperator in possession of the premises, a Mitchell-Lama cooperative apartment. Annexed to the petition is a "Rent Demand Notice" dated March 22, 2019, which alleges that respondent owes maintenance and additional maintenance dating to November 2017. Respondent filed a pro se answer on April 29, 2019. After an initial adjournment for respondent to obtain counsel through the Universal Access program, New York Legal Assistance Group appeared as counsel for [*2]respondent on May 29, 2019, and the proceeding was adjourned to July 10, 2019. Prior to the July 10th court date, respondent, through counsel, filed a motion to dismiss based on an alleged improper rent demand. The proceeding was adjourned on July 10th for opposition and reply, and the court heard argument on the motion on August 20, 2019, and reserved decision.

Respondent's Motion

Respondent moves pursuant to CPLR 3211 (a) (7), arguing that petitioner fails to state a cause of action insofar as its rent demand is defective. Specifically, respondent alleges that petitioner is seeking rent for months prior to her recognition as a successor to the subject apartment. Petitioner opposes the motion and argues, inter alia, that respondent's request for dismissal should be denied because she has "unclean hands" as a result of her alleged forgery of the former (deceased) cooperator's signature on a 2017 income affidavit. Petitioner also points to language in the former cooperator's occupancy agreement stating that all provisions therein bind successors, as well as a Division of Housing and Community Renewal (DHCR) memorandum directing Mitchell-Lama housing companies to collect rent and use and occupancy during the pendency of succession applications and appeals.{**65 Misc 3d at 1041}

Analysis

A proper rent demand is a "statutory prerequisite to a nonpayment proceeding" and "must 'set forth the approximate good faith amount of rent owed' and 'fairly apprise the tenant of the periods for which rent is allegedly due and in what amounts.' " (EOM 106-15 217th Corp. v Severine, 62 Misc 3d 141[A], 2019 NY Slip Op 50068[U],*1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019] [citations omitted], citing Dendy v McAlpine, 27 Misc 3d 138[A], 2010 NY Slip Op 50890[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010], and Pantigo Professional Ctr., LLC v Stankevich, 60 Misc 3d 133[A], 2018 NY Slip Op 51039[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2018].) Here, petitioner's rent demand notice (hereinafter rent demand) seeks $13,897.26 in maintenance and additional maintenance from respondent. The sums sought date from November 2017 through March 2019. Although respondent's motion does not include an affidavit from respondent, petitioner acknowledges in the opposition papers that respondent applied for succession rights on September 26, 2018, and that the application for succession rights was approved on October 23, 2018.^[FN*]

It has been repeatedly held by the Appellate Term, Second Department that a nonpayment proceeding "must be predicated upon an agreement by the tenant to pay the rents demanded." (Licht v Moses, 11 Misc 3d 76, 78 [App Term, 2d Dept, 2d & 11th Jud Dists 2006]; see also 265 Realty, LLC v Trec, 39 Misc 3d 150[A], 2013 NY Slip Op 50974[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; Underhill Ave. Realty, LLC v Ramos, 49 Misc 3d 155[A], 2015 NY Slip Op 51804[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; 615 Nostrand Ave. Corp. v Roach, 15 Misc 3d 1 [App Term, 2d Dept, 2d & 11th Jud Dists 2006].) In the context of succession, until the successor is a party to a lease or rental agreement, "no landlord-tenant relationship" exists upon which a claim for rent may be predicated. (615 Nostrand Ave. Corp., 15 Misc 3d at 3; see also Strand Hill Assoc. v Gassenbauer, 41 Misc 3d 53, 54 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013] ["(A) successor in interest is not a tenant until he becomes a party to a lease or rental agreement"].)

Notwithstanding the general prohibition on collection of pre-succession rents, petitioner asserts that respondent is not{**65 Misc 3d at 1042} entitled to the relief sought herein because of "unclean hands" resulting from an alleged forging of the former cooperator of record's signature on an income affidavit after she died. Although there is no dispute that the former cooperator, Fredericka Irick, had died when the form was purportedly signed, petitioner presents no affidavit from anyone with personal knowledge attesting to respondent's responsibility for the forgery. Moreover, since service of a valid rent demand is a required prerequisite for every summary nonpayment proceeding (see EOM 106-15 217th Corp.), even unclean hands would not relieve petitioner of complying with the requirement. (See e.g. Kimball Ave. Assoc., LLC v Walsh, 43 Misc 3d 135[A], 2014 NY Slip Op 50660[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2014].)

Petitioner also relies on Ms. Irick's occupancy agreement, specifically paragraph 31, to argue that as a successor, respondent is bound by the "covenants, conditions and agreements" contained therein (including the obligation to pay maintenance). However, by petitioner's own admission (through counsel in the opposition papers), petitioner did not approve respondent as the successor until October 2018. As with rent stabilization, succession to a Mitchell-Lama cooperative is governed by a statutory and regulatory scheme (specifically Private Housing Finance Law §§ 32 and 84, Public Housing Law § 19, and 9 NYCRR 1727-8.1 et seq.). Under that scheme, the rights and obligations of the successor do not vest until the succession requirements are met and acknowledged. (See 9 NYCRR 1727-8.4 [a] ["Where a family member applies to the housing company for permission to remain in occupancy the housing company, within 30 days of receipt of the application, shall act upon the application by either requesting the division to approve the application or by denying the application and notifying the applicant family member in writing of its determination" (emphasis added)]; see also Matter of Murphy v New York State Div. of Hous. & Community Renewal, 21 NY3d 649, 653 [2013] ["In the event that Mitchell-Lama tenants vacate an apartment, their co-occupants are not automatically entitled to succeed to the tenancy. Under the applicable regulations, succession applicants must make an affirmative showing in order to establish their eligibility"].) Consequently, respondent was not bound by the terms of the occupancy agreement until she obtained succession rights pursuant to the regulatory process.{**65 Misc 3d at 1043}

Finally, the court does not find that DHCR Memorandum No. 2019-B-02, a copy of which is attached to petitioner's opposition papers, holds respondent liable for arrears accruing before the acknowledgment of respondent's succession to the subject apartment. The Memorandum merely states that "all housing companies are directed to continue to seek to collect rent or use and occupancy during the pendency of a succession application and any appeals." The Memorandum does not create a legal obligation to pay use and occupancy during the pendency of any succession application and/or appeals; it instead directs housing companies to seek to collect it. Indeed, the Memorandum references Housing Preservation and Development's (HPD) city-aided Mitchell-Lama regulations, which require payment of use and occupancy during the pendency of the succession application, and specifically characterizes DHCR's regulations as being "more permissive than HPD's."

Consequently, respondent is not responsible for any of the arrears accruing prior to October 2018, when her succession rights were acknowledged by petitioner. (See 615 Nostrand Ave. Corp.; Strand Hill Assoc.) The rent demand seeks 11 months of rent, totaling $8,776.50, prior to October 2018. This comprises more than 63% (a majority) of the $13,897.26 sought altogether. As this portion may not be collected from respondent, the rent demand does [*4]not " 'set forth the approximate good faith amount of rent owed' " or " 'fairly apprise [respondent] of the periods for which rent is allegedly due and in what amounts.' " (EOM 106-15 217th Corp., 62 Misc 3d 141[A], 2019 NY Slip Op 50068[U],*1 [citations omitted].)

Accordingly, respondent's motion to dismiss pursuant to CPLR 3211 (a) (7) is granted on the basis that petitioner's rent demand is defective. The immediate proceeding is discontinued without prejudice to seek any rent arrears accruing after respondent succeeded to the subject apartment.