June 14, 2026

I was hired by an important non-profit organization to defend it against a major New York City landlord that was gunning to evict the nonprofit. Let us begin the story with a few caveats. First, it was one of these stories where the culprit, at least one of them, had been the Pandemic. That, and some questionable expansion decisions by an earlier board. Second, on a substantive level, if the matter had made it to trial, my client would probably have been found to owe some or most of the rent. This was a sophisticated client, operating in a high stakes philanthropic environment. They were smart enough to understand that they were not hiring me to win. They were hiring me to create some space, some breathing room, so they could maybe get an infusion of money from a donor and so that the landlord would slow down and talk rather than sue.

This is a common type of engagement for me. I spend much of my time attempting to get these cases right. Thus, I am uniquely positioned to find where my adversary has perhaps gotten a case wrong.

In most instances when a landlord finds it necessary to sue a tenant to recover rent or possession of a premises, the proper vehicle is a summary proceeding for the recovery of real property (“Summary Proceeding”). A Summary Proceeding is an expedited lawsuit, for the recovery of rent and possession of a premises, governed by Article 7 of the Real Property Actions and Proceedings Law (“RPAPL”). Summary Proceedings are expeditious because the parties’ procedural rights and remedies are severely limited. Among other things, for example, the tenant’s time to answer the lawsuit is accelerated and, absent leave of court, there is no discovery. There are two types of Summary Proceedings: a “Nonpayment Proceeding”; and a “Holdover Proceeding”. A Nonpayment Proceeding is a lawsuit for the recovery of rent due and, in the absence of full and timely recovery of rent due, possession of the premises. RPAPL § 711(2).

Here is the most important thing to know about Summary Proceedings, if you are new to them – Summary Proceedings are won or lost before they are filed. This is so because every Summary Proceeding has a statutorily required predicate notice stage, which takes place before the lawsuit is even filed. A predicate notice is NOT amendable. Chinatown Apts., Inc. v. Chu Cho Lam, 51 NY2d 786 [1980]. Before a landlord is allowed to sue tenant in a Nonpayment Proceeding, it must serve a tenant with a 14-day statutory rent demand. RPAPL § 711(2) (“Rent Demand”).

In today’s story, I was going to be up against a very big and prestigious law firm that was representing the landlord. You would think that being up against Big Law would mean that it would be harder for me to find a landlord-side error. The opposite is almost always true. Big firms simply do not do enough landlord-tenant litigation to develop a body of expertise within the field. Big firms tend to make the mistake of assuming that because landlord-tenant litigation is generally down-market of the fancy stuff they spend their time on, that landlord-tenant litigation is easy enough for them to figure out by assigning the matter to a young associate.

That is what happened in today’s story. A young associate did a little research and produced what he referred to as a Rent Demand and served it on my non-profit client. The problem was that the young associate did not read the statute carefully, nor did he allow himself to be guided by the many exemplars available on your average research platform these days. Rather, this kid just Frankensteined together what was basically a nasty letter telling the tenant to pay the rent. What a rookie mistake.

I attempted to courteously negotiate with my adversary and was rebuffed. Thereafter, the big firm initiated a Nonpayment Summary Proceeding against my client, based upon the Rent Demand that was not a Rent Demand. Below, I include the text of my First Defense in the answer I submitted on behalf of the non-profit to the Nonpayment Summary Proceeding:

FIRST DEFENSE

(Failure to satisfy a condition precedent.)

26. On [DATE], Respondent received from Petitioner a [DATE] document, which Petitioner refers to in ¶ 9 of the Petition as a “Notice of Default/Rent Demand” (“Notice of Default”). Petitioner annexes to the Petition at Exhibit C a copy of the Notice of Default. See NYSCEF 5. Petitioner explains in the last sentence of ¶ 9 of the Petition that the Notice of Default, “demanded that Respondent pay the outstanding Rent, in the amount of $1,XXX,XXX.00, before the expiration of fourteen (14) days from the day of the service of said Rent Demand.” That was all that the Notice of Default demanded.

27. A nonpayment proceeding is a lawsuit for the recovery of rent due and, in the absence of full and timely recovery of rent due, possession of the premises. See Real Property Actions and Proceedings Law (“RPAPL”) 711(2).

28. Before a landlord is allowed to sue a tenant in a nonpayment proceeding, it must serve a tenant with a 14-day statutory rent demand pursuant to RPAPL § 711(2) (a “Rent Demand”). A Rent Demand must state that the tenant has the alternative of paying the arrears or surrendering the premises. [FN – J.D. Realty Associates v. Jorrin, 166 Misc.2d 175 [New York City Civil Court, New York County 1995] affd sub nom., 169 Misc 2d 292 [App Term, 1st Dept 1996] holds: “Service of the [Rent Demand] serves two important functions. It is the statutory predicate for a summary nonpayment proceeding. (RPAPL 711 [2].) Accordingly, if a proper notice is not served, the subsequently commenced proceeding must be dismissed. Moreover, it informs the tenant of the amount of rent claimed due and what the tenant must do to avoid litigation which could result in eviction. In order to serve both functions, the notice must allege the approximate dollar amount which the petitioner believes, in good faith, is due and owing. [Citations omitted.] It must demand payment of that sum, or surrender of the premises; if the tenant does not comply, only then may the owner commence a summary nonpayment proceeding to evict the tenant.” [Emphasis supplied.]]

29. A proper predicate Rent Demand is a condition precedent to commencement of a nonpayment proceeding, it cannot be amended nunc pro tunc and a nonpayment proceeding based on a defective Rent Demand must be dismissed, without prejudice. [FN – Chinatown Apts v. Chu Cho Lam, 51 NY2d 786, 788 [1980].]

30. The Notice of Default is not a Rent Demand. Let us look at the exact text of the Notice of Default (NYSCEF 5):..[I am omitting the actual text of the “Rent Demand”…]

31. That is all terrific. But that is not a Rent Demand.

32. A Rent Demand must state that the tenant has the alternative of paying the arrears or surrendering the premises. The Notice of Default simply does not do that. A proper predicate Rent Demand is a condition precedent to commencement of a nonpayment proceeding, it cannot be amended nunc pro tunc, and a nonpayment proceeding based on a defective Rent Demand must be dismissed.

33. Petitioner has hired attorneys who, while undoubtedly excellent in their typical areas of core competency, clearly do not practice landlord-tenant law. A Rent Demand is a ubiquitous and pro forma document in the landlord-tenant space and almost universally reads like this: [Text omitted.]

34. That is a Rent Demand. The Notice of Default is not a Rent Demand.

35. The Notice of Default cannot be amended.

36. Petitioner has, therefore, failed to satisfy the condition precedent imposed by RPAPL § 711(2) for initiation of a summary nonpayment proceeding.

37. Petitioner has failed to state all the elements of a summary nonpayment cause of action.

38. Therefore, this proceeding must be dismissed.

[End of Answer Excerpt]

My experience is that when big firms (actually, sometimes this applies to small firms as well, but it especially applies to big firms) mess up, they do not like to admit it, discontinue, and try again, even though that would be he absolute best move for the landlord in this situation. I suspect that large firms with large rates do not want to look stupid in front of their clients. Also, the ethos with such firms is often aggression over scholarship. Do not confuse them with the facts or the law. Everything is a fight.

In all fairness, discontinuing would have been problematic for the big firm because, within the answer, I included counterclaims for massive damage to my client’s premises from a leak from the building’s plumbing.

As the fight about the Rent Demand that was not a Rent Demand was about to heat up and maybe hit the news cycle on a slow day, the landlord’s big law firm decided to hit the books. They realized their mistake. They wanted to have a meeting. If I would agree to stipulate to discontinue, they would give us a six-weekk moratorium on the next attempt at a lawsuit and a meeting. Boom. And THAT – is exactly what I was hired to make happen. I believe the parties settled on mutually beneficial terms.

The moral of the story is – do not send a big firm to do a small firm’s job. In fact, big firms (smart ones) often hire me in these commercial cases to do the landlord-tenant litigation part of a bigger engagement. I am good at this work and there is no danger of me, as a tiny firm, stealing any of the big firm’s M&A work!

Respectfully submitted,

Michelle Itkowitz