OKONKWO v. GALBREATH (2025)

Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion:

Papers Numbered

Order to show Cause/ Notice of Motion and Affidavits /Affirmations annexed 1

Answering Affidavits/ Affirmations 2

Reply Affidavits/ Affirmations 3

Memoranda of Law

Other

Motion Seq. No. 1

NYSCEF Doc. No. 1- 13

This is an expired license holdover proceeding predicated on a 90-Day Termination Notice. The petition was filed on June 3, 2024, and per Petitioner's Affidavit of Service, it was personally served on July 16, 2024. The case was first heard on July 29, 2024 and was adjourned for Respondent to do intake with legal services. New York Legal Assistance Group filed Notice of Appearance on September 9 and filed the instant Notice of Motion Seq. No. 1 to Dismiss on September 24, 2024. Petitioner filed an Affidavit of Facts in response to Respondent's Motion on September 30, and Respondent filed Reply on October 31. Petitioner filed a second Affidavit of Facts on December 18, 2024, and the motion was heard that day.

Respondent's Motion to Dismiss argues that the property in dispute is subject to New York Good Cause Eviction Law, and this case must be dismissed because Petitioner has not alleged cause to evict Respondent. In support of this argument, Respondent submits an affidavit stating that the subject building has five tenants in separately rented Single Room Occupancy (SRO) units. In his Affidavit of Facts and Affidavit of Compliance, Petitioner states that he does not own ten or more units in New York state, and so Good Cause Eviction does not apply.

Discussion and Conclusion

Neither side disputes that this proceeding commenced after the effective date of New York Good Cause Eviction law. Respondent's motion alleges that the subject premises are not exempt from Good Cause because the Petitioner is not a “small landlord,” under the statute, and Petitioner in response offers an Affidavit of Service affirming that he owns fewer than ten units in New York State. In reply, Respondent argues that Petitioner did not properly plead this exception per RPAPL § 741, and that Petitioner's Affidavit is not the proper form to amend his pleading under CPLR 3025.

Though Petitioner asserts that the subject property is not subject to Good Cause because Petitioner does not own ten or more units in New York state and is therefore a “small landlord” under RPL § 231-c (2)(B), Petitioner has not filed a motion to amend his pleadings or an amended petition that pleads this exception. Even if the court were to accept Petitioner's Affidavit of Facts and Affidavit of Compliance in lieu of a motion to amend, Respondent is correct that Petitioner has not alleged what is required under the Good Cause statute to plead the “small landlord” exception. In addition to stating that he owns fewer than ten units in New York State, Petitioner must also “provide to the tenant or tenants subject to the proceeding the name of each natural person who owns or is a beneficial owner of, directly or indirectly, in whole or in part, the housing accommodation at issue in the proceeding, the number of units owned, jointly or separately, by each such natural person owner, and the addresses of any such units, excluding each natural person owner's principal residence.” Id. The Good Cause legislation amended RPAPL at § 741 (5-a) requiring this information to be appended or incorporated into a holdover petition. Petitioner has not by any means provided this information to respondent as required by the statute, nor has he moved to amend the pleadings to comply with this requirement. See, e.g. Doc Realty Management Inc. v. Morales, 85 Misc 3d 389 [Civ Ct Queens Co, 2024].

Based upon the arguments presented and the pleading requirements of NYRP § 231-c (2)(B), Respondent's motion to dismiss this holdover proceeding is granted.

Accordingly, it is

ORDERED that the proceeding is dismissed without prejudice.

This Decision/Order will be filed to NYSCEF.

This constitutes the Decision/Order of the Court.

SO ORDERED,

Enedina Pilar Sanchez, J.