HARWAY TERRACE INC v. PETROPIENTO (2021)

ORDERED that the order, insofar as appealed from, is modified by providing that, upon reargument, tenants’ motion to dismiss is granted to the extent of dismissing the petition without prejudice; as so modified, the order, insofar as appealed from, is affirmed, without costs.

In this holdover proceeding, landlord alleges that the tenancy is unregulated and that tenants’ lease expired. Landlord appeals from an order of the Civil Court which, upon reargument, granted tenants’ motion to dismiss the petition.

A petition must concisely allege, among other things, the interest of the tenant and the facts upon which the proceeding is based (see RPAPL 741; Giannini v Stuart, 6 AD2d 418 [1958]). 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 Brookwood Coram I, LLC v Oliva, 47 Misc 3d 140[A], 2015 NY Slip Op 50607[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2015]; Volunteers of Am.-Greater NY, Inc. v Almonte, 17 Misc 3d 57 [App Term, 2d Dept, 2d & 11th Jud Dists 2007]; see also 433 West Assocs. v Murdock, 276 AD2d 360 [2000]). A petition which contains “fundamental misstatements and omissions” is subject to dismissal on motion (Jeffco Mgt. Corp. v Local Dev. Corp. of Crown Hgts., 22 Misc 3d 141[A], 2009 NY Slip Op 50455[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]).

The only issue before this court is whether there was a pleading defect, and we find that there was. It is undisputed that the petition incorrectly states that the apartment is a cooperative apartment, which claim is the basis for the allegation therein that the apartment is exempt from rent stabilization. Consequently, the petition failed to satisfy the requirements of RPAPL 741 and was properly dismissed (see Brookwood Coram I, LLC,[U]; Cintron v Pandis, 34 Misc 3d 152[A], 2012 NY Slip Op 50309[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2012]; Joseph M. d'Assern Hous. Corp. v Day, 24 Misc 3d 132[A], 2009 NY Slip Op 51377[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2009]; see also Park Props. Assoc., L.P. v Williams, 38 Misc 3d 35 [App Term, 2d Dept, 9th & 10th Jud Dists 2012]).

We reach no other issue.

Accordingly, the order, insofar as appealed from, is modified by providing that, upon reargument, tenants’ motion to dismiss is granted to the extent of dismissing the petition without prejudice.

WESTON, J.P., TOUSSAINT and GOLIA, JJ., concur.