SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS Appellate Term, Second Department
February 16, 2012
Appeal from a decision of the Justice Court of the Town of New Windsor, Orange County (Noreen Calderin, J.), dated May 27, 2010, deemed from a final judgment of the same court entered June 10, 2010.
Cintron v Pandis
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This opinion is uncorrected and will not be published in the printed Official Reports.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 February 16, 2012
PRESENT: NICOLAI, P.J., MOLIA and IANNACCI, JJ
The final judgment, after a non-jury trial, awarded landlord possession in a holdover summary proceeding.
ORDERED that the final judgment of possession is reversed, without costs, and the petition is dismissed.
In this holdover proceeding, the petition alleges that tenant entered into possession pursuant to a written lease dated December 15, 2003 and that a 30-day notice to vacate the premises was served upon tenant. Tenant moved to dismiss the petition based on, among other grounds, the petition's inadequacy. The motion was apparently denied and, after a bench trial, the court awarded landlord a final judgment of possession.
In our view, the petition should have been dismissed. Pursuant to RPAPL 741, a petition must state, among other things, the interest of the tenant and the facts upon which the proceeding is based. The tenant is entitled to a concise statement of the ultimate facts upon which the proceeding is based (Giannini v Stuart, 6 AD2d 418 ). Where a tenancy is subject to a specific form of regulation, the petition must set forth the tenant's regulatory status, because this status may determine the scope of the tenant's rights (see Matter of Volunteers of Am.-Greater NY, Inc. v Almonte, 17 Misc 3d 57 [App Term, 2d & 11th Jud Dists 2007], affd 65 AD3d 1155 ; 433 W. Assoc. v Murdock, 276 AD2d 360 ). A petition which contains "fundamental misstatements and omissions" will be dismissed (see 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]).
The instant petition contained fundamental misstatements and omissions and was not reasonable under the circumstances (see McFadden v Sassower, 26 Misc 3d 141[A], 2010 NY Slip Op 50316[U] [App Term, 9th & 10th Jud Dists 2010]). The petition failed to contain any allegation that tenant was in possession of a mobile home and that her rights were governed by Real Property Law § 233, or that she had failed to renew her lease in accordance with Real Property Law § 233, or to otherwise explain how tenant allegedly became a month-to-month tenant. In the circumstances presented, these material omissions require the dismissal of the petition, as without this information, this holdover proceeding cannot be properly adjudicated (see RPAPL 741; McFadden, 26 Misc 3d 141[A], 2010 NY Slip Op 50316[U]; Jeffco Mgt. Corp., 22 Misc 3d 141[A], 2009 NY Slip Op 50455[U]).
Accordingly, the final judgment of possession is reversed and the petition is dismissed.
Nicolai, P.J., Molia and Iannacci, JJ., concur.
Decision Date: February 16, 2012
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