LP v. REDACTED 10604 (2026)

Respondent moves this Court for dismissal of the instant action on the grounds that the Court lacks subject matter jurisdiction over the cause of action (CPLR 3211[a][2]) and that Petitioner has failed to state a cause of action in its petition (CPLR 3211[a][7]). In response, Petitioner asserts that if there were any defects with the predicate notice, that would be a defense to the case, not a jurisdictional bar. Petitioner further contends that the petition contains sufficient factual allegations, and any deficiency can be amended. This Court disagrees. Accordingly, Respondent's motion to dismiss is GRANTED.¹

Findings of Fact

This matter is a summary holdover proceeding. The petition that commenced this action alleges that Stepping Stones Associates LP is the landlord of Respondent's apartment in White Plains, and that "Respondent entered into possession thereof of the Premises under a rental agreement whereby Respondent promised to pay to Petitioner rent." Petition, p 1. The petition specifies that the Premises is subject to regulation by the "ETPA." Id. It also states that "Respondent was served with a Notice of Non-Renewal and a Notice of Termination as per the Affidavit of service (both attached)," thereby incorporating the contents of those notices and affidavit into the petition. Id. The petition provides no further allegations identifying the reason or reasons for non-renewal and termination. It alleges that Respondent continues to holdover in the Premises without the landlord's permission.

The Notice of Non-Renewal of Tenancy indicates that it was served "pursuant to New York State Real Property Actions and Proceedings Law 226-c" and states it is providing notice of the landlord's "intention not to renew your tenancy for the Premises and demands that you remove from the Premises, which you now occupy, on or before Termination Date." The Termination Date is identified as September 30, 2025. The notice further indicates that the landlord will commence a summary eviction proceeding if the tenant does not vacate from the premises by the Termination Date. The Notice does not contain any reference to the ETPA or indication of the basis for the termination and non-renewal of tenancy.

The Notice of Termination of Month to Month Tenancy, states the following:

TAKE NOTICE that the undersigned landlord of the Premises hereby demands that you remove from the Premises which you now occupy, on or before the Termination Date which is the end of one month from the date of the service of this notice.

TAKE FURTHER NOTICE that the Landlord does hereby terminate your MONTH to MONTH TENANCY and your occupancy and month to month tenancy as of Termination Date and the occupancy and tenancy of all those claiming under you with respect to the Premises.

TAKE FURTHER NOTICE that you are required to remove from the Premises on or before Termination Date and upon your failure to vacate and/or remove from the said premises, the undersigned landlord will commence summary eviction proceedings to remove you therefrom.

TAKE FURTHER NOTICE THAT the within notice is served with the authority of the Landlord and binds the Landlord to the contents of this notice as given herein.

See Petition. The Notice of Termination of Month to Month Tenancy also identifies September 30, 2025 as the Termination Date. According to the Affidavit of Service, the Notice of Non-Renewal of Tenancy and Notice of Termination of Month to Month Tenancy, along with the Notice to Tenant of Applicability or Inapplicability of the New York State Good Cause Eviction Law, were personally served on Respondent on June 10, 2025 at the subject premises.

In his motion to dismiss, Respondent avers that he has lived in the Premises since 2000, and that it is a rent stabilized apartment subject to the Emergency Tenant Protection Act of 1974 ("ETPA") and the Emergency Tenant Protection Regulations ("ETPR", 9 NYCRR 2500 et seq.). Respondent's last ETPA lease expired September 30, 2015. He asserts that on September 2, 2015, he signed a two-year renewal lease with a term set to commence on October 1, 2015, and set to end on September 30, 2017. See Mosso Aff. in Support, para. 4-6. Respondent argues that termination from an ETPA regulated premises must follow ETPA regulations, which permit termination only for certain statutorily set grounds. Respondent further argues that a notice to terminate a tenancy in an ETPA regulated premises (other than for non-payment) must include the 9 NYCRR 2504.2 ground for termination, the facts necessary to establish that ground, and the date the tenant is required to surrender the premises. Since the Notice of Non-Renewal and Notice of Termination of Month to Month Tenancy did not include any ground for terminating the tenancy, or facts supporting that ground, Respondent argues that the predicate notice was defective. Since proper predicate notice must be given to create subject matter jurisdiction in a holdover summary proceeding, Respondent argues dismissal is required. Respondent further argues that the petition fails to state a cause of action, because the facts as alleged in the petition (which incorporates the notices and affidavits of service) do not provide "any factual basis to terminate Respondent's [ETPA] tenancy and maintain the instant holdover proceeding." Mosso Aff. in Support, para 13.

In response, Petitioner argues that the failure to renew an expiring lease is a permissible basis under 9 NYCRR 2504.2 to terminate a tenancy. Respondent further argues that any defect in the Notices is not jurisdictional, and any defect in the petition is subject to amendment. In sum, Respondent argues that dismissal is not warranted.

In Reply, Respondent reiterates that, pursuant to 9 NYCRR 2504.3, a notice to vacate or surrender an ETPA regulated premises must contain the ground for termination under 9 NYCRR 2404.2, and facts supporting the ground. Since the Notices to Respondent did not indicate why Respondent's tenancy was being terminated, they did not satisfy 9 NYCRR 2504.3, and Petitioner was not able to commence or maintain this summary proceeding, and, concomitantly, failed to state a cause of action. Since the predicate notices are not subject to amendment, dismissal is required.

During oral argument on March 11, 2026, Petitioner, through counsel, acknowledged that the premises is subject to the ETPA even with a month-to-month tenancy, and that 9 NYCRR 2504.2 and 2504.3 are applicable to the termination of the instant tenancy. According to counsel for Petitioner, the language in each of the Notices was sufficient because it informed the tenant that his month to month tenancy was being terminated by the landlord. Counsel further argued that the failure to renew an expiring lease is a permitted basis to terminate an ETPA tenancy, even if the failure occurred more than ten years ago.

Conclusions of Law

As the Court of Appeals has stated,

[o]n a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction (see CPLR 3026). We accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory. In assessing a motion under CPLR 3211(a)(7), however, a court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint and 'the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one.'

Leon v Martinez, 84 NY2d 93, 87-88 (1994) (citations omitted); see also Rovello v Orofino Realty Co, Inc, 40 NY2d 633, 635-36 (1976). Pleadings in a summary holdover proceeding must satisfy RPAPL 741. As relevant here, RPAPL 741(4) mandates that the petition must "[s]tate the facts upon which the special proceeding is based." See Giannini v Stuart, 6 AD2d 418 [1st Dept 1958]) (petition must contain a "concise statement of the ultimate facts upon which the proceeding is based"). The factual allegations must be sufficient to permit the formulation of a defense. Tompkins Park-St Marks Assoc v Boz Boz II Enterprises, LLC, 177 Misc 2d 949, 950 (App Term, 1st Dept 1998); MSG Pomp Corp v Doe, 185 AD2d 798, 800 (1st Dept 1992) (the pleading requirements in RPAPL 741 serve to inform a respondent "of the factual and legal claims that he or she will have to meet" and enable the tenant "to interpose whatever defenses are available"). Additionally, the petition must state the respondent's interest in the premises and whether a tenancy is subject to a particular rent regulation, as that status may determine the scope of the tenant's rights within the summary proceeding. See Cintron v Pandis, 34 Misc 3d 152(A) (App Term, 2d Dept, 9th & 10th Jud Dists 2012); Volunteers of Am.-Greater NY, Inc v Almonte, 17 Misc 3d 57 (App Term, 2d Det 2007). Fundamental omissions or misstatements of fact in a petition that deprive the court and respondent of adequate notice are grounds for dismissal. McFadden v Sassower, 26 Misc 3d 141(A) (App Term, 9th & 10th Jud Dists 2010); Jeffco Mgt Corp v Local Dev Corp of Crown Heights, 22 Misc 3d 141(A) (App Term, 2d Dept 2009); Jericho Project Lessee v Marte-Travera, 67 Misc 3d 1204(A) (Bronx Co Civ Ct 2020); see also CPLR 3013. "With respect to the contents of the petition, adequacy of notice in a landlord-tenant proceeding is governed by a standard of reasonableness under the circumstances." 546 W 156th St HDFC v Smalls, 43 AD3d 7, 11 (1st Dept 2007).

In this matter, Petitioner acknowledged in the petition (and at oral argument) that the apartment is regulated by the ETPA. Accordingly, in order to state a cause of action for this summary holdover proceeding, Petitioner needed to establish in the petition that Respondent's tenancy had been properly terminated in accordance with ETPA regulations. Notably, an ETPA tenancy cannot be terminated for any reason—it must be one permitted under 9 NYCRR 2504.2, which includes: (a) a violation of a substantial obligation of the tenancy; (b) committing or permitting a nuisance, substantially damaging the accommodations, or persistent or unlawful use of the property to the annoyance, inconvenience or discomfort of others; (c) illegal occupancy; (d) using the accommodations for immoral or illegal purpose; (e) unreasonably refusing landlord access for repairs; (f) refusal or failure to renew an expiring lease; or (g) an illegal sublet. Pursuant to the ETPA,

[e]xcept where the ground for removal or eviction of a tenant is nonpayment of rent, no tenant shall be removed or evicted from housing accommodations by court process and no action or proceeding shall be commenced for such purpose upon any of the grounds permitted in section 2504.2 of this Part unless and until the landlord shall have given written notice to the tenant and the division as hereinafter provided.

9 NYCRR 2504.3(a). The tenant's written notice to vacate or surrender possession must "state the ground under section 2504.2 of this Part upon which the landlord relies for removal or eviction of the tenant, the facts necessary to establish the existence of such ground, and the date the tenant is required to surrender possession." 9 NYCRR 2504.3(b).

The petition in this matter incorporates the Notice of Non-Renewal of Tenancy and the Notice of Termination of Month to Month Tenancy, which were attached. Those notices, however, do not specify any reason for the termination of tenancy. They merely declare that it is being terminated and the date Respondent was being directed to surrender possession. There is no reference to any of the permitted grounds for termination contained in 9 NYCRR 2504.2  ² , nor is there a recitation of "facts necessary to establish the existence of such ground." The petition is similarly missing those allegations. It simply states that Respondent entered into possession of the premises "under a rental agreement whereby Respondent promised to pay to Petitioner rent," that the attached and incorporated Notice of Non-Renewal and Notice of Termination were served, and that "Respondent holds over in the possession of the Premises without Petitioner's permission." Petition, p. 1. Under the circumstances, the absence in the petition of a ground pursuant to 9 NYCRR 2504.2 for terminating a tenancy in an ETPA regulated premises, the absence of facts establishing the ground for termination, and the absence of factual allegations that a proper notice of termination was served in compliance with 9 NYCRR 2504.3, are fundamental omissions that deprive Respondent and the court of notice of the "ultimate facts upon which the proceeding is based." Accordingly, the petition has failed to state a cognizable cause of action. See MKBH Management LLC v Strachin, 72 Misc 3d 1211(A) (Mt Vernon City Ct 2021) (dismissing petition for failure to state a cause of action where neither petition nor notice of termination provided an ETPA approved basis to terminate tenancy or facts supporting the termination); Dwyer v Wimbrush, 62 Misc 3d 1213(A) (Mt Vernon City Ct 2019) (dismissing petition for failure to state a cause of action where neither petition nor notice of termination provided a rent-controlled or ETPA approved basis to terminate tenancy or facts supporting the termination); see also 952 St Marks Ave HDFC v White, 66 Misc 3d 35 (App Term, 2d Dept 2019) (petition should have been dismissed for failing to comply with RPAPL 741 where it and the notice of termination failed to plead good cause for the eviction of the tenant, or identify facts regarding petitioner's status as an HDFC); 2025 Regent, LLC v Bennet, 31 Misc 3d 147(A) (App Term, 2d Dept, 2nd, 11th & 13th Jud Dists 2011) (dismissing petition for failure to state a cause of action where neither the petition nor notices nor subsequent papers set forth a basis for terminating a Section 8 subsidy, when it terminated, or whether there was a lease in effect when the landlord terminated the tenancy); Westchester Gardens LP v Lanclos, 43 Misc 3d 681 (Bronx Co Civ Ct 2014) (petition dismissed as defective where it did not allege compliance with termination procedures for a federally regulated tenancy).

While the Court can consider "affidavits submitted by the plaintiff to remedy any defect in the complaint" (Leon v Martinez, 84 NY2d at 87-88), thus far Petitioner has not submitted an affidavit with additional averments. Instead, Petitioner relies on allegations in Respondent's motion to dismiss and states that a failure to renew an expiring lease is one of the approved grounds for terminating an ETPA regulated tenancy under 9 NYCRR 2504.2. But Petitioner has not provided any factual averments that ETPA regulations were followed in offering Respondent a lease renewal or that Respondent refused or failed to renew  ³ , and Respondent's allegations do not suffice to fill the missing factual gaps.

Moreover, granting leave to amend  ⁴ the petition—which should be freely given absent prejudice (CPLR 3025[b]; Edenwald Contracting Co v New York, 60 NY2d 957 [1983])—will not remedy the defect in the pleadings and avoid dismissal. Simply put, amending the petition to state an ETPA-approved ground for termination would not resolve the pleading's failure to also allege that the tenancy was terminated in compliance with ETPA regulations. This is so because Petitioner is incapable of pleading compliance with the ETPA in its petition since the written notices—which were served on Respondent and are a part of the petition—did not comply with 9 NYCRR 2504.3. While a petition can be amended, predicate notices cannot. Chinatown Apartments, Inc v Chu Cho Lam, 51 NY2d 786, 787 (1980) ("since the right to terminate the tenancy pursuant to the terms of the lease was dependent upon service of an adequate notice, the subsequent amendment of the petition, which could not operate retroactively to cure a defect in the notice, did not enhance petitioner's right to relief"). Since proper predicate notices under 9 NYCRR 2504.3 are required before a tenant can be terminated from an ETPA regulated premises, and the ones served here did not comply because they lacked specification of an ETPA approved ground for termination and lacked facts establishing that ground, Petitioner is unable to set forth facts establishing a cognizable ground to support the instant summary holdover proceeding.

Accordingly, the instant petition is DISMISSED pursuant to CPLR 3211(a)(7) for failure to state a cause of action.

THIS DECISION CONSTITUTES THE ORDER OF THE COURT

Dated: April 8, 2026

White Plains, New York

ORDERED:

HON. MARY JO L. BLANCHARD

CITY COURT JUDGE

Cc:

Carl Finger, Esq. and David Dahan Esq.

Finger & Finger

158 Grand Street

White Plains, NY 10601

Stephen Mosso, Esq.

Legal Services of the Hudson Valley

90 Maple Avenue

White Plains, NY 10601

FOOTNOTES

1.   In determining this motion, the Court reviewed and considered the following: Respondent's Notice of Motion to Dismiss, dated November 24, 2025, and the accompanying Affirmation in Support by Stephen Mosso, Esq., (hereinafter, "Mosso Aff. in Support"), and Exhibits; Petitioner's Affirmation in Opposition by Carl Finger, Esq., dated December 15, 2025 (hereinafter "Finger Aff. in Opp."); Reply Affirmation by Stephen Mosso, Esq., dated December 23, 2025 (hereinafter, "Mosso Reply Aff."), and Exhibits; oral argument held on March 11, 2026; and the Court File.

2.   The Notice of Non-Renewal of Tenancy indicates it is being served pursuant to RPL 226-c (later in the body mistakenly referred to as "New York State Real Property Actions and Proceedings Law 226-c"). However, that statute is not applicable to ETPA regulated premises.

3.   Notably, if there was a refusal or failure to renew, based on Respondent's motion and the parties' oral argument, it occurred more than a decade ago, and Respondent has been treated as a month-to-month tenant since.

4.   Petitioner has not moved to amend the petition. Rather, it has merely argued that any defect is amendable.

Mary Jo L. Blanchard, J.