Cintron v. Pandis

• Decision Date: 16 February 2012
• Docket Number: No. 2010–2545ORC.,2010–2545ORC.
• Parties: Leo CINTRON, Respondent, v. Jennifer PANDIS, Appellant.
• Court: New York Supreme Court — Appellate Division

950 N.Y.S.2d 490

Leo CINTRON, Respondent,

v.Jennifer PANDIS, Appellant.

No. 2010–2545ORC.

Supreme Court, Appellate Term, New York,

9th and 10th Judicial Districts.

Feb. 16, 2012.

OPINION TEXT STARTS HEREPresent: NICOLAI, P.J., MOLIA and IANNACCI, JJ.

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. The final judgment, after a nonjury 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 A.D.2d 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 Matter of Volunteers of Am.-Greater NY, Inc. v. Almonte, 17 Misc.3d 57, 847 N.Y.S.2d 327 [App Term, 2d & 11th Jud Dists 2007], affd65 A.D.3d 1155 [2009];433 W. Assoc. v. Murdock, 276 A.D.2d 360 [2000] ). 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 N.Y. 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 N.Y. 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...