The Decision and Order on this Motion are as follows:

2229 Creston Partners LLC, the petitioner in this proceeding ("Petitioner") commenced this nonpayment summary proceeding against Maria Ramos, the respondent in this proceeding ("Respondent") for recovery of the premises known as 2229 Creston Avenue, Apt. 2, Bronx, New York 10453 ("the subject premises") by service and filing of a notice of petition and petition.

The petition, verified on November 5, 2010, alleged that, prior to the commencement of the proceeding, Petitioner demanded that Respondent pay rent arrears by service of a predicate notice. The notice, dated October 22, 2010, which is annexed to the petition, demanded that Respondent pay $2,498.78. A breakdown in the notice stated that Respondent owed $507.52 for September of 2010, $995.63 for October of 2010, and $995.63 as "security."

Respondent retained counsel and moved, pursuant to CPLR §3211(a)(2), for, inter alia, an order dismissing the petition because of defects in the rent demand. Annexed to Respondent's motion is a stipulation from a prior nonpayment proceeding between Petitioner and Respondent, 2229 Creston Partners, LLC v. Ramos, Index No. L/T 37972/2009 (Civ. Ct. Bronx Co.), dated May 26, 2010. That stipulation provided that arrears owed prior to January of 2009 were severed [*2]"w/out prejudice" [sic.] from the proceeding and that Respondent acknowledged owing $2,419.05 in rent arrears.

According to Petitioner's rent history, annexed to Petitioner's opposition to the motion, the monthly rent for the subject premises has been $995.63. Adding the $995.63 for June through August of 2010 to the $2,419.05 owed through May of 2010 yields an arrears amount of $5,405.94 through August of 2010 before crediting any payments made after the May 26, 2010 stipulation. Petitioner's breakdown credits a total of $5,659.05 in payments received after May 26, 2010 and before the end of August, 2010. Accordingly, Respondent would have had a credit of $253.11 going forward into September of 2010.

Annexed to Respondent's motion is a stipulation from the prior proceeding dated September 9, 2010 discontinuing the prior proceeding without prejudice to September 2010 arrears, which is consistent with Petitioner's breakdown showing Respondent with a credit as of August of 2010.

According to Petitioner's rent history, the monthly rent for September and October of 2010 was $995.63, a total rent liability of $1,991.26 for those two months. Petitioner's breakdown shows that it credits a total of $1,080.00 in payments in between September 1, 2010 and October 22, 2010.^[FN1] That credit, in addition to the $253.11 credit going forward into September 2010, when applied against the $1,991.26 rent liability for September and October of 2010, leaves a balance as of October 22, 2010 of $658.15.

RPAPL §711(2) requires a landlord to demand payment of outstanding rent from a tenant as a condition to the commencement of a nonpayment proceeding against the tenant. One purpose of the rent demand requirement is to afford a tenant an opportunity to avoid litigation by paying the amount due. Strong L.P. v Dakar Rest., Inc., 28 Misc 3d 1213A (Civ. Ct. Kings Co. 2010), 545 W. Co. v. Schachter, 16 Misc 3d 431, 432 (Civ. Ct. NY Co. 2007). Accordingly, the sum demanded in the predicate notice needs to be, at the very least, a good faith approximation of the rent that a tenant would have to pay to prevent litigation. 542 Holding Corp. v. Prince Fashions, Inc., 46 AD3d 309, 310 (1st Dept. 2007). Failure to demand such a good faith approximation in the predicate notice renders such notice defective. Dendy v McAlpine, 27 Misc 3d 138A (App. Term 2nd Dept. 2010).

Although the proper amount to be tendered to prevent litigation in the instant proceeding as of October 22, 2010, the date of the predicate notice, was $658.15, as per the Court's calculations above, the predicate notice in this proceeding demanded payment of $2,498.78, more than three times that amount. Even discounting the fact that the $2,498.78 encompasses a purported security deposit due of $995.63, and assuming arguendo that inclusion of such a non-possessory charge does not render the notice defective in and of itself, the amount of rent the notice demanded is still $1,503.15, more than twice the $658.15 owed.

Demand of an amount more than what is actually owed as such renders the predicate notice defective. IG Second Generation Partners, LP v. 166 Enterprises Corp. & Urban Outfitters, Inc., N.Y.L.J. Aug. 5, 2003 at 18:1 (App. Term 1st Dept.). As defective predicate notices cannot be amended, Chinatown Apartments Inc. v. Chu Cho Lam, 51 NY2d 786 (1980), the petition is defective. [*3]

Accordingly, the Court grants the motion to the extent of dismissing the petition without prejudice to any future cause of action of the Petitioner for rent due and owing.

This constitutes the decision and order of this Court.

Dated:Bronx, New York

April 21, 2011

________________________________

HON. JACK STOLLER

J.H.C.