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2025 Regent, LLC v. Michael Bennet

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS


May 23, 2011

2025 REGENT, LLC,
RESPONDENT,
v.
MICHAEL BENNET,
APPELLANT,
AND "JOHN/JANE DOE",
UNDERTENANT.

Appeal from an order of the Civil Court of the City of New York, Kings County (Anthony J. Fiorella, Jr., J.), entered May 14, 2010. The order denied tenant's motion to dismiss the petition in a holdover summary proceeding.

2025 Regent, LLC v Bennet

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 23, 2011

PRESENT: PESCE, P.J., GOLIA and STEINHARDT, JJ

ORDERED that the order is reversed, without costs, and tenant's motion to dismiss the petition is granted.

In October 2009, landlord commenced this holdover proceeding following the service upon tenant of a 10-day notice to cure and a seven-day notice of termination. The notices alleged that tenant had violated a substantial obligation of the "tenancy" pursuant to the terms of tenant's written lease agreement dated August 19, 1997, "thereafter renewed," by failing or refusing "to submit required and necessary documents to Section 8 in order to process reinstatement of your Section 8 subsidy. Your apartment has passed inspection and you have intentionally failed and/or refused to submit necessary documents to Section 8." Tenant moved to dismiss the petition on the ground that it failed to state a cause of action. In support of the motion, tenant's counsel noted that the Section 8 tenancy addendum provides that the lease terminates automatically if the Section 8 Housing Assistance Payments (HAP) contract terminates (HAP contract, Part C, § 9) and that the HAP contract provides that it "terminates automatically 180 calendar days after the last housing assistance payment to the owner" (HAP contract, Part B, § 4 [b] [4]). Tenant's counsel asserted, albeit not on personal knowledge, and landlord did not deny, that tenant's lease had terminated pursuant to these provisions of the Section 8 agreement and that tenant thereafter had become a month-to-month rent-stabilized tenant (who, under Real Property Law § 232-a, would be entitled to a 30-day notice of termination and not merely a seven-day notice). Tenant's counsel also asserted that tenant was under no obligation to restore the subsidy once the apartment had passed inspection.

In our view, tenant's motion to dismiss should have been granted on the ground that the petition fails to adequately set forth the facts upon which the proceeding is based (RPAPL 741). Neither the notices nor the petition, nor any of landlord's subsequent papers in this proceeding, set forth the reason the subsidy had terminated (the apartment had, according to tenant's attorney, failed inspection) or the date the subsidy had terminated, or whether there was a lease in effect at the time that landlord had purportedly terminated the "tenancy," or the term of any such lease. In the circumstances presented, these material omissions require the dismissal of the petition as, without this information, the matter cannot be properly adjudicated (RPAPL 741; see McFadden v Sassower, 26 Misc 3d 141[A], 2010 NY Slip Op 50316[U] [App Term, 9th & 10th Jud Dists 2010]; Jeffco Mgt. Corp. v Local Dev. Corp. of Crown Hgts., 22 Misc 3d 141[A], 2009 NY Slip Op 50455[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).

Accordingly, the order is reversed and tenant's motion to dismiss the petition is granted.

Pesce, P.J., Golia and Steinhardt, JJ., concur. Decision

Date: May 23, 2011

20110523

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