Harway Terrace, Inc. v. Petropiento

• Citation: 155 N.Y.S.3d 29 (Table),73 Misc.3d 137 (A)
• Decision Date: 12 November 2021
• Docket Number: 2020-135 K C
• Parties: HARWAY TERRACE, INC., Appellant, v. Nicole PETROPIENTO and Vincent Petropiento, Respondents, et al., Undertenants.
• Court: New York Supreme Court — Appellate Term

73 Misc.3d 137 (A)
155 N.Y.S.3d 29 (Table)

HARWAY TERRACE, INC., Appellant,
v.
Nicole PETROPIENTO and Vincent Petropiento, Respondents, et al., Undertenants.

2020-135 K C

Supreme Court, Appellate Term, New York, Second Dept., 2, 11, 13 Jud. Dist.

Decided on November 12, 2021

Woods Lonergan, PLLC (Annie E. Causey of counsel), for appellant.

The Legal Aid Society (Charles Alvarez of counsel), for respondents.

PRESENT: MICHELLE WESTON, J.P., WAVNY TOUSSAINT, DONNA-MARIE E. GOLIA, JJ.

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...