49 LLC v. ALICIA PARRA SHANNA PARRA JOSE PARRA JR JEREMY PARRA (2026)

Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion: NYSCEF 1-24

Respondent Jose A. Parra moves for summary judgment dismissing this holdover proceeding on the ground that petitioner failed to use the mandatory notice of petition prescribed by Administrative Order ("AO") 163/19 and Uniform Rules for the New York City Civil Court (22 NYCRR) § 208.42 (b). Petitioner opposes and cross-moves for leave to amend the notice of petition, contending that the departures from the prescribed form are technical, nonprejudicial and curable.

The motions concern the purpose and enforceability of the "mandatory" notice of petition form prescribed by then-Chief Administrative Judge Hon. Lawrence K. Marks via administrative order in 2019. The prescribed notice communicates both the existence of an eviction proceeding and information enabling its recipient to participate in that proceeding. Its language and organization serve that function together. For the reasons that follow, the court concludes that the departures presented here impair that function and cannot be treated as inconsequential irregularities. Indeed, given court administration's interest in communicating the nature of the proceeding and the minimal effort required in using it, it is hard to imagine any circumstances where departure from the form notice could be deemed inconsequential.

I. Procedural history

Petitioner commenced this proceeding in January 2026 to recover possession of apartment 5 at 453 West 36th Street in Manhattan. On May 13, 2026, respondent filed a verified answer expressly challenging the notice of petition under 22 NYCRR 208.42 (b) and AO/163/19. The answer also disputes the apartment's pleaded regulatory status and petitioner's authority to maintain the proceeding. Those additional defenses are not determined here.

Respondent thereafter moved for summary judgment on the notice of petition defense. Although portions of the motion papers refer to subdivision (c) of section 208.42, subdivision (b) governs this residential holdover proceeding. The verified answer identifies the applicable subdivision, and the parties' submissions squarely address compliance with the mandatory holdover form.

The original notice of petition served reproduces substantial portions of the prescribed English-language text. It nevertheless departs from the prescribed form in several respects. Most significantly, part of the multilingual information appearing under "Language Help" has been replaced by corrupted characters. The notice also omits the boxes separating the multilingual information and the explanations concerning postponements, rent deposits and post-judgment procedures, and does not preserve the prescribed emphasis distinguishing resource headings from their accompanying explanations.

II. Legal Standard

A party seeking summary judgment must establish entitlement to judgment as a matter of law through evidence eliminating material factual disputes. Failure to satisfy that initial burden requires denial regardless of the sufficiency of the opposition. Once the showing is made, the opposing party must demonstrate a triable issue (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986].) Here, the relevant differences are documented, and the difference between the form served and the mandatory form are conceded. Whether those differences warrant dismissal or may be excused presents a question of law.

III. Analysis

The Chief Administrative Judge has authority to prescribe forms for use in court filings. This authority derives from the constitutional and statutory framework governing administration of the Unified Court System. (NY Const, art VI, § 28 [b], [c]; Judiciary Law § 212 [2] [d]; see M&S Queens Realty LLC v London, 79 Misc 3d 788, 789 [Civ Ct, Queens County 2023].) Within that authority, court administration may prescribe a readable and accessible means of communicating the steps necessary to respond to an eviction proceeding.

Administrative Order AO/163/19, dated August 7, 2019, was promulgated as an exercise of this constitutional and statutory authority. This administrative order amended 22 NYCRR 208.42 and promulgated new notices of petition forms for residential holdover and nonpayment proceedings. Use of the form became mandatory after September 30, 2019. The amendment to 22 NYCRR 208.42 (b) expressly provides for a form notice of petition "for mandatory use" in residential eviction proceedings other than those brought for nonpayment of rent.

The change from an illustrative form to a "mandatory" one must be given effect (see generally People v Minor, 111 AD3d 198, 205 [1st Dept 2013] ["[W]here the language of a statute is plain, courts should construe words of ordinary import with their usual and commonly understood meaning" (internal quotation marks omitted)]). The rule requires use of the prescribed form; it does not merely offer suggested language from which a petitioner may construct a substitute. It follows that the defects in the form served by Petitioner here require dismissal of the petition.

The First Department's treatment of requirements governing summary proceedings supports dismissal. In Riverside Syndicate, Inc. v Saltzman (49 AD3d 402 [1st Dept 2008]), the Appellate Division required dismissal where the landlord failed to complete service within the applicable statutory period. The Court reaffirmed that "there must be strict compliance with the statutory requirements to give the court jurisdiction." (Id. at 402 [internal quotation marks omitted].) Applying Riverside Syndicate's strict compliance requirement, the Appellate Term, First Department, affirmed the denial of a request to deem proof of service timely filed nunc pro tunc (125 E. 50th St. v Credo Intl. Inc., 75 Misc 3d 134[A], 2022 NY Slip Op 50504[U], *1 [App Term, 1st Dept 2022].) And in David A. Kaminsky & Assoc., PC v Brenner (64 Misc 3d 129[A], 2019 NY Slip Op 51028[U], *1-2 [App Term, 1st Dept 2019]), that court extended Riverside Syndicate strict compliance in holding that a third-party summons failing to comply with CCA 401 (b) and 22 NYCRR 208.6 was jurisdictionally defective and could not be amended. The holding enunciated here is in line with and a logical extension of Riverside Syndicate and its progeny.

The court has considered Jones Living Trust v Burnell (88 Misc 3d 129[A], 2026 NY Slip Op 50201[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2026]) and 975 Wash. Prop., LLC v Sanchez (89 Misc 3d 131[A], 2026 NY Slip Op 51312[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2026]). As decisions of the Appellate Term in another department, they are persuasive rather than binding on this court (cf. Mountain View Coach Lines v Storms, 102 AD2d 663, 664-665 [2d Dept 1984]). The approach taken in Burnell and Sanchez echoes the prejudice analysis employed by the Appellate Term, Second Department, in Siedlecki v Doscher (33 Misc 3d 18, 20 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). The Siedlecki court expressly declined to follow Riverside Syndicate, a First Department decision binding on this court and forming a basis for the holding here. The Burnell analysis runs counter to the strict compliance approach this court is obliged to follow under stare decisis.

CPLR 2001 nevertheless must be addressed on its own terms. In Ruffin v Lion Corp. (15 NY3d 578, 582-583 [2010]), the Court of Appeals held that technical defects in service may be corrected or disregarded. The Court rejected a categorical rule placing every service defect beyond the statute's reach. It also explained that actual receipt is not dispositive and that the inquiry must consider the defect's effect on the notice process. Accordingly, this court does not hold that the mandatory character of section 208.42 alone eliminates the operation of CPLR 2001. The question is whether the particular departures are technical or impair the function the requirement serves. Nardeo v Diaz (82 Misc 3d 1092, 1097-1104 [Civ Ct, Bronx County 2024]), upon which petitioner relies, applied Ruffin to late filing of proof following timely personal delivery. The defect concerned recording service already accomplished. Here, the defect appears within the communication delivered to the respondent. The distinction matters because the defects in the original notice affect how required information is conveyed.

The notice of petition serves a substantive protective purpose even though the rule prescribing it is procedural. It explains how a person threatened with eviction may respond, obtain assistance and exercise rights during the proceeding. Plain language makes those instructions understandable. Headings, spacing, emphasis and visual separation help the recipient identify and use them. Multilingual directions enable readers to locate assistance without first understanding an English explanation.

The practical importance of understandable notices was recognized within the court system before AO 163/19. In a September 9, 2016 memorandum advocating a mandatory plain-language notice of nonpayment petition, then-Deputy Chief Administrative Judge Fern A. Fisher and Access to Justice Program Chief Counsel Rochelle Klempner reported that the existing notice was written at a twelfth-grade reading level. They also described feedback from Help Center staff that tenants sometimes mistook the notice of petition for an eviction notice requiring them to leave immediately. The proposed replacement used shorter sentences and familiar language to explain how to answer, raise defenses and obtain assistance. (See Fern A. Fisher & Rochelle Klempner, Mem to John W. McConnell, Amendment to Section 208.42[d] of the Uniform Rules of the New York City Civil Court to Provide for a Mandatory Plain Language Notice of Nonpayment Petition at 1-2 [Sept. 9, 2016].)¹

Although that memorandum addressed an earlier proposal concerning nonpayment proceedings, its reasoning illuminates the access-to-justice purpose served by mandatory, understandable initiating notices. The authors connected comprehensible instructions with meaningful participation and anticipated that clearer notices could reduce defaults and burdens on court personnel. (Id. at 2.) That rationale bears directly on the distinction petitioner urges between form and substance. Information concerning a tenant's rights has practical value only if the recipient can recognize and understand it. Readability and organization help make that possible. Enforcing the material communicative features of the prescribed notice therefore protects the opportunity to exercise substantive rights; it does more than insist on conformity to an administrative preference.

Scientific research also supports treating design features as functional. In a study of New York City criminal summonses, Alissa Fishbane, Aurelie Ouss and Anuj K. Shah found that redesigning the summons to make critical information more salient reduced failures to appear by approximately 13 percent relative to the comparison rate. (Alissa Fishbane et al., Behavioral Nudges Reduce Failure to Appear for Court, 370 Science abb6591 [2020].) While that study did not evaluate AO/163/19, it nevertheless supplies empirical support for the proposition that the design of court instructions can affect whether their recipients act on them. The importance of participation is particularly evident in eviction proceedings. An NYU Furman Center study examining nonpayment filings over a six-year period found that 54 percent went unanswered across the New York jurisdictions studied. Approximately 16 percent of all filings resulted in default judgments. (Ryan Brenner et al., Half the Battle Is Just Showing Up: Non-Answers and Default Judgments in Non-Payment Eviction Cases Across New York State, 2016-2022 at 2, 4, 6 [NYU Furman Center Jan. 2023].)

Court administration should be encouraged to create well-designed notices that apprise pro se litigants about housing court proceedings. Allowing Petitioners to disregard the design promulgated by administration or to correct the deficiencies ex post would inhibit administration from effectively communicating with those pro se litigants and could increase default judgments in housing court. The protections afforded by the notice of petition should not depend on a later inquiry into whether an individual recipient overcame a defective communication. Nor does the appearance of English-language instructions render prescribed multilingual information dispensable. The form was designed for the public receiving it, including people who may need language assistance before they can understand what to do.

The court notes that its holding does not rest on a finding that respondent reads a particular omitted language, missed a court appearance or personally misunderstood a specific passage. The record does not establish those facts. It rests on the material impairment of the prescribed notice itself: corrupted multilingual information combined with removal of features separating and emphasizing important instructions. In the court's view, those departures compromise the protective function of the mandatory form and exceed a technical infirmity that CPLR 2001 requires the court to disregard.

Petitioner's request to amend pursuant CPLR 3025 does not entail a different result. That provision governs amendment of pleadings. A notice of petition is distinct from the petition and is not itself a pleading. (CPLR 402, 403; Clinton-178 Towers LLC v Chapple, 58 Misc 3d 198, 204 n 6 [Civ Ct, Bronx County 2017].) The liberal standard for pleading amendments therefore does not, by itself, authorize retrospective correction of defective initiating process. This distinction does not mean that a notice of petition can never be corrected under any authority. The court has separately considered CPLR 2001. It concludes that the amendment requested here would replace materially deficient notice after the proceeding had begun, rather than correct an inconsequential irregularity.

While the proposed amended notice restores the appropriate text in the affected multilingual section, it does not alter the contents of the notice originally served, and the proposal continues to omit significant organizational features of the prescribed form. Deeming the proposal served and filed nunc pro tunc would not establish that respondent received the required notice at commencement.

Petitioner also invokes 22 NYCRR 208.1 (b), which permits waiver of rules within part 208 for good cause and in the interests of justice, subject to the limitations stated there. The court recognizes that authority but finds no sufficient basis to exercise it here because petitioner has failed to provide good cause for the error. There is nothing onerous about the requirement to use the form notice of petition. When the form was promulgated, administration provided blank pdfs on its website (https://www.nycourts.gov/forms/notice-petition-holdover-eviction). All petitioner had to do to comply with 22 NYCRR § 208.42 (b) was click on the link, fill out the form and print it. Compliance required no independent drafting or translation. Court administration had supplied the form. Petitioner could complete the designated case-specific portions and submit it for issuance while preserving the prescribed instructions and organization. The availability of that form substantially reduces the burden of compliance and avoids the very transcription problem presented by this record.

Ease of compliance does not transform a harmless error into a substantive defect. It is relevant, however, to petitioner's request for discretionary relief. Neither counsel's affirmation nor Elaine Gorlechen's affidavit identifies a circumstance explaining why use of the prescribed form was impracticable. The assertion that the defect was accidental and caused no demonstrated individual prejudice does not, under these circumstances, establish good cause to waive the requirement.

Respondent has established the material noncompliance on which the motion rests. Petitioner's submissions do not raise a factual dispute requiring trial, and its proposed amendment and waiver arguments do not warrant relief. The court need not determine respondent's remaining defenses.

Accordingly, it is

ORDERED that respondent Jose A. Parra's motion for summary judgment is granted, and the petition is dismissed without prejudice insofar as asserted against him; and it is further

ORDERED that petitioner's cross motion for leave to amend the notice of petition and for nunc pro tunc relief is denied.

This constitutes the decision and order of the court which will be delivered to the parties via posting to NYSCEF.

Date: September 21, 2026

Hon. Jason P. Vendzules

FOOTNOTES

1.   Retrievable at https://www.nycourts.gov/LegacyPDFS/RULES/comments/PDF/Request%20Public%20Comment-Model%20Eviction%20Notice%20of%20Petition.pdf. Last accessed September 21, 2026.

Jason P. Vendzules, J.