Before a landlord may begin a nonpayment proceeding, the governing statute requires that a "demand of the rent" be made upon a tenant.* This formal request for the payment of all outstanding sums due may be in oral or written form -- unless the landlord's option to resort to an oral demand is expressly precluded by the parties' lease agreement.
Publications disseminated by the New York City Civil Court, such as "A Tenant's Guide to the New York City Housing Court," reinforce the critical nature of this "condition precedent." The "Tenant's Guide" notes, in relevant part, as follows:
Before you can be sued, the landlord or someone working for the landlord must demand the overdue rent from you and warn you that, if you do not pay, you can be evicted. You can be told this orally or in writing. If your lease requires that this kind of demand be given in writing, then it must be in writing. If it is in writing, the rent demand must be delivered to you at least three days before the day that the court papers are served, unless your lease requires more days.
You can imagine our surprise when, just the other day, we came across an appellate decision which dismissed a landlord's nonpayment case for neglecting this fundamental step.
In Community Hous. Innovations, Inc. v. Franklin, the Petitioner was apparently trying to be a bit too "innovative." Although it had won a nonpayment case which it had filed against its tenant in the Suffolk County District Court, on appeal, the Appellate Term, 9th and 10th Judicial Districts, reversed the outcome. For reasons that are unclear to us, the landlord elected to skip a step or was unable to prove (to the court's satisfaction) that an oral or written demand had been made. Here's the information the decision supplies:
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] ... 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 ....
Yikes! That must have hurt.**
For a copy of the Appellate Term's decision in Community Hous. Innovations, Inc. v. Franklin, please click on the following link: http://www.nycourts.gov/reporter/3dseries/2007/2007_50050.htm
For a copy of "A Tenant's Guide to the New York City Housing Court," please click on the following link: http://www.nycourts.gov/courts/nyc/housing/pdfs/tenantsguide.pdf
For a copy of the "A Landlord's Guide to the New York City Housing Court," please click on the following link: https://www.courts.state.ny.us/courts/nyc/housing/pdfs/Landlordbooklet.pdf
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*Real Property Actions and Proceedings Law (RPAPL) section 711(2).
**By the way, after a nonjury trial, the landlord had been awarded a whopping $1,981.12. (The appeal had to cost more than what was originally sought to be recovered!)