months of July 2010 through November 2010, the June 2011 proceeding sought arrears
for the months of August 2010 through June 2011, the May 2012 proceeding sought
arrears for the months of February 2012 through May 2012, and the November 2012
proceeding sought arrears for the months of October 2012 through November 2012.
Prior to serving and filing an answer, tenant moved to dismiss the petition on the
grounds that it fails to state a cause of action (CPLR 3211 [a] [7]) and that a defense is
founded upon documentary evidence (CPLR 3211 [a] [1]). After landlord opposed the
motion, the Civil Court, by order dated January 28, 2014, granted tenant's motion,
finding that the petition failed to state a cause of action.
It is well settled that a "history of repeated nonpayment proceedings brought to
collect chronically late rental payments supports an eviction proceeding on the ground
that the tenant has violated a substantial obligation of the tenancy" (Adam's Tower
Ltd. Partnership v Richter, 186 Misc 2d 620, 621-622 [App Term, 1st Dept 2000],
citing Sharp v Norwood, 89 NY2d 1068, [*2]1069 [1997]). However the "number of nonpayment actions
commenced is relevant only in the context of the entire circumstances surrounding the
alleged withholding of rent" (Greene v Stone, 160 AD2d 367, 368 [1990]).
A review of the record indicates that the petition sufficiently sets forth that tenant
violated a substantial obligation of the lease (see RSC § 2524.3 [a]) by her
chronic late payment of rent, as evidenced by the fact that landlord had commenced four
nonpayment proceedings against tenant in the three years prior to the filing of the petition
in 2013. Tenant argues that the 2010 and 2011 nonpayment proceedings cannot be