Recitation, as required by C.P.L.R. §2219 (a), of the papers considered in the review of these motions. Papers Numbered Petitioner’s Motion, Affirmation and Affidavit Annexed 1-5 Respondent’s Opposition and Exhibits Annexed 6-7 Petitioner’s Reply Affirmation and Affidavit 8-9 Exhibits 10-14, 15 DECISION/ORDER Upon the foregoing cited papers, the decision and order on this motion are as follows: Petitioner commenced this holdover proceeding on March 28, 2018 alleging that respondents were in possession of the subject premises after the expiration of their lease, which expired on February 28, 2018. Petitioner further alleged that respondents did not execute a renewal lease, which had been previously offered to them. Respondents, Nicole Petropiento and Vincent Petropiento, appeared by counsel and on August 16, 2018, respondents moved to dismiss the proceeding pursuant to CPLR §§3211 (a) (1) and (7) on the ground that petitioner failed to properly plead the rent regulatory status of the subject premises. On December 20, 2018, this Court denied respondent’s motion, and restored the case to the court’s calendar for all purposes on January 22, 2018. On January 15, 2019, respondents moved to reargue their prior motion to dismiss. On April 26, 2019, this Court rendered a decision granting respondent’s motion to reargue, and subsequently dismissed the petition. On May 24, 2019, petitioner moved to reargue respondent’s motion to dismiss, vacate the Decision and Order dated April 26, 2019, deny respondent’s motion to reargue and amend paragraph 2 of the petition. Petitioner argues that the court mistakenly held that the conversion plan did not reserve the right to allocate shares to the subject apartment in the future, and based its decision on this misunderstanding. Petitioner stated that on page 7, paragraph 15, the plan provides that “in order to sell shares allocated to the apartments of non-participating shareholders or to apartments where shares are not currently allocated, the apartment corporation will need to update the plan by the filing of an amendment thereto or apply for a no-action letter.” (See respondent’s Exhibit D in the underlying motion.) Therefore, the plan did provide for shares to be allocated to the subject apartment. In addition, petitioner contends that respondent’s motion to reargue was based upon a distinction between the rent stabilization law and the rent stabilization code. However, the court rendered a decision based upon a mistake of fact regarding the conversion plan and its allocation of shares to the subject apartment. Petitioner also requests leave to amend the petition to remove the language which states that “respondents entered into possession of the premises pursuant to an expired written rental agreement.” Respondents opposed the motion, and argues that petitioner mischaracterized the court’s decision. Respondents contend that this court did not state that its reason for rendering the decision was solely based upon petitioner’s failure to provide for future allocation of shares to the subject apartment. In addition, respondents asserts that petitioner’s request to amend the petition should be denied because respondents did have a lease for the subject apartment, and such an amendment would be prejudicial to them. Pursuant to CPLR §2221 (d) “a motion for leave to reargue (1) shall be identified specifically as such; (2) shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion; and (3) shall be made within thirty days after service of a copy of the order determining the prior motion and written notice of its entry”. Petitioner requests leave to reargue respondents underlying motion, and contends that this Court misapprehended the facts and based its determination on a misunderstanding that “the conversion plan did not reserve rights to allocate shares to the subject premises.” Petitioner misapprehends the court’s decision dated April 26, 2019, and believes that the crux of the court’s analysis was based solely upon the conversion plan’s failure to provide for the future allocation of shares to the subject apartment. While the court misstated the plan’s provision for future allocation of shares to the subject apartment, this was not the basis of the court’s determination. Specifically, the Decision and Order dated April 26, 2019 specified that there was no conversion of respondent’s apartment to cooperative status, as there was no conversion of respondent’s apartment to the subject apartment. Since there was no conversion of respondent’s apartment to cooperative status, the subject apartment is covered under the Rent Stabilization Law as it is not now, nor has it ever been, owned as a cooperative or a condominium since the building was built prior to the enactment of the Rent Stabilization Law in 1969. Pursuant to CPLR 3025(b), leave to amend pleadings is to be freely given, absent significant prejudice to the opposing party. Pri Villa Ave. L.P. v. Santiago, 62 Misc. 3d 1206(A), [Civ Ct, Bronx County, 2019]. In addition, this standard of law applies to summary holdover proceedings under RPAPL Article 7. Id. citing 289 & 305 Assocs, LP v. Loman, 50 Misc 3d 141[A], 31 NYS3d 924, 2016 NY Slip Op 50192[U] [App Term 1st Dep't 2016]; Coalition Houses LP v. Bonano, 12 Misc 3d 146[A], 2006 NY Slip Op 51516([U] [App Term 1st Dep't 2006]; Min Tija v. Schwartz, 2011 NY Slip Op 31148[U][Civ Ct NY Co 2011]; 601 W Realty, LLC v. Chapa,19 Misc 3d 1133[A], 866 NYS2d 95, 2008 NY Slip Op 50985[U] [Civ Ct NY Co 2008]. Petitioner seeks leave to amend the petition and remove the language which states that respondents “entered into possession under written rental agreement which expired.” Petitioner argues that this statement was made in error as respondents have never occupied the premises pursuant to a written lease agreement. Respondents argue, however, that they did enter into the premises subject to a lease agreement, and a copy of the expired lease was attached as respondent’s Exhibit A. Petitioner contends that this lease agreement was in effect for Apartment # L3 and not the subject apartment. However, the court need not reach this issue at this time. Based on the foregoing, petitioner’s motion pursuant to CPLR 2221 to reargue is granted, and upon re-argument, petitioner’s request to vacate the order granting respondent’s motion is denied. Petitioner’s motion to amend the petition is therefore moot. This constitutes the decision and order of the court. Dated: August 20, 2019 Brooklyn, New York
