In the instant case the respondent's attorney made a motion to the court following the completion of the petitioner's case and immediately after the petitioner had rested in which she requested dismissal of petitioner's claims based upon the petitioner's failure to establish a prima facia case by his lack of any testimony and proof of proper demand for rent. Petitioner's argument that somehow, after he commenced this summary proceeding and after issue was joined, Petitioner was able free himself from the requirements of these demand notice provisions and confer jurisdiction upon this court by way of a stipulation, which by the way makes no mention, explicit or otherwise of a waiver by the respondent of his affirmative defense of no notice, seems specious at best. Petitioner cites no authority supporting this theory and the court could find none on it's own.
The Petitioner's failure to strictly comply with the statutes governing summary proceeding mandates dismissal of petitioner's claims. In the Matter of Wallace Oil Company, Inc. v. Clarke, 284 AD2d 492 (2nd Dept. 2001)
Respondent's motion for same is now granted.
RESPONDENT'S COUNTERCLAIMS
Respondent's first counterclaim is for abatement of the rent. As this court has just dismissed petitioner's claims for rent, respondent's counterclaim for abatement is rendered moot.