Recitation, as required by CPLR §2219 [a], of the papers considered in review of the underlying moving papers. PAPERS NUMBERED Notice of Motion; Affirmation; Affirmation; & Exhibits (“A”-”D”) 1, 2, 3, 4 Notice of Cross-Motion; Affirmation; Affidavit; & Exhibit (“1″) 6, 7, 8, 9 Affirmation in Reply to Petitioner’s Opposition to Respondent’s Motion & In Opposition to Petitioner’s Cross-Motion 10 DECISION/ORDER Upon the foregoing cited papers, the Decision and Order is as follows: BACKGROUND 2198 Cruger Associates LLC (“Petitioner”) commenced the instant licensee holdover proceeding against Behat Xhurreta and Indriti Ndreka (“Respondents”) to recover possession of the premises located at 2198 Cruger Avenue, Basement First Door, Right Side Apartment, Bronx, New York 10462. Respondents, represented by counsel, move to dismiss this proceeding pursuant to CPLR §3211 (a)(7) and CPLR §3212. Respondents aver that this proceeding is subject to dismissal as the Petitioner has failed to file the notice of petition and accompanying affidavits of service as required by the RPAPL. Petitioner has cross-moved pursuant to CPLR §2001 and CPLR §3025 (b) and (c). Petitioner seeks an order deeming the annexed notice of petition, petition and affidavits of service as originals or, in the alternative, amending the Petition to include the aforementioned pleadings. The motions are consolidated for disposition herein. DISCUSSION Aside from the motion papers cited pursuant CPLR §2219 (a) in review of the instant motion and cross-motion, a review the Court file reveals only the following records: a Petition; a 10 Day Notice to Quit; and the affidavits of service for the predicate notice. Noticeably absent from the court file is the Notice of Petition and accompanying affidavits of service for the Notice of Petition and Petition. Respondent has moved this Court for dismissal and asserts that the Petitioner has failed to timely file the Notice of Petition and accompanying affidavits as required by RPAPL §731 and RPAPL §735. The Petitioner has cross-moved for relief. Petitioner seeks to deem a copy of the notice of petition and accompanying affidavits as originals, nunc pro tunc. In the alternative, Petitioner seeks an amendment of the Petition to include the aforementioned pleadings. The Petitioner contests that it properly complied with the requirements of the RPAPL. A copy of the purported filing is attached as Exhibit “1″ to Petitioner’s cross-motion. While Petitioner’s motion may have merit in the Appellate Division, Second Department (see Siedlecki u Doscher 33 Misc 3d 18 [App Term 2d Dept 2011]; Lanz v. Lifrieri, 104 AD2d 400 [2d Dept 1984]; Birchwood Towers # 2 Assoc. v. Schwartz, 98 AD2d 699 [2d Dept 1983]), this Court is bound by the holdings of this Department which require strict compliance with the statutory requirements so as to give the court jurisdiction (Riverside Syndicate, Inc. u Saltzman 49 AD3d 402 [1st Dept 2008] Berkeley Assoc. Co. v. Di Nolfi, 122 AD2d 703, 705 [1st Dept 1986] lv dismissed 69 NY2d 804, 505 NE2d 951, 513 NYS2d 36 [1987]). Contrary to the positions set forth in Petitioner’s cross-motion, there is no indication that the Petitioner timely complied with the filing requirements of the RPAPL as they pertain to the Notice of Petition and affidavits of service. First, the copy of the notice of petition and affidavits of service (for the notice of petition and petition) do not bear a time stamp from the court clerk concerning the date and time of filing. The Court notes that upon filing of the Notice of Petition, it is time stamped separate and apart from the time stamp that is provided for on the Petition. The time stamp on the Notice of Petition is made upon filing of the original with the affidavits of service. Second, the Petitioner has failed to include an affidavit of an individual with personal knowledge of the filing which would indicate or lead the court to believe that the clerk of the court misplaced the documents in question. Finally, the copies presented do not appear to be copies of those actually filed. The clerk of the court stamped the Petition with the time stamp indicating the date and time of filing; stamped the initial return date of the petition, the time, and the part. Petitioner’s copy does not bear the same leading the Court to believe that it is a later and inaccurate reproduction. CONCLUSION Accordingly, it is hereby: ORDERED, Respondent’s motion is GRANTED and the proceeding is dismissed without prejudice; and it is further ORDERED, Petitioner’s cross-motion is DENIED, in its entirety. This constitutes the Decision/Order of this Court. Dated: November 15, 2019 Bronx, New York
