Appeal from a final judgment, entered June 30, 2005 and an order, entered August 18, 2005, of the District Court of Suffolk County, Fifth District (James P. Flanagan, J.). The final judgment, after a nonjury trial, awarded landlord possession and the sum of $1,981.12 in a nonpayment summary proceeding. The order denied tenant's motion to vacate the final judgment.

Final judgment reversed without costs and petition dismissed.

Appeal from order dismissed as academic.

As an element of its prima facie case in a nonpayment summary proceeding, a landlord must establish either that a personal demand for rent was made or that a
three-day notice was served in the manner prescribed in RPAPL 735 (RPAPL 711 [2];
see Tolman v Heading, 11 App Div 264 [1896]; 2 Dolan, Rasch's Landlord and Tenant - - Summary Proceedings § 32:15 [4th ed]). In the instant case, landlord failed to establish either that a personal demand for rent was made or that a three-day notice was served in accordance with the statute, and tenant's attorney timely raised objection to this failure at trial. Under the circumstances, the final judgment must be reversed and the petition dismissed (see Tolman v Heading, 11 App Div 264, supra; see also Matter of Salvatore and Catherine Pepe v Miller and Miller Consulting Actuaries, 221 AD2d 545 [1995]).

Rudolph, P.J., McCabe and Lippman, JJ., concur.
Decision Date: January 8, 2007