DECISION AND ORDER Petitioner commenced this nonpayment proceeding in March 2020 seeking to recover rental arrears in the amount of $13 950.00 for the period of June 2019 through March 2020. The petition provides that the premises are not subject to the ETPA or rent control. Respondent now moves to dismiss on the grounds that the petitioner failed to sufficiently state the facts upon which the special proceeding is based pursuant to Real Property Actions and Proceedings Law (“RPAPL”) §741(3). Respondent has also interposed a laches defense. Petitioner opposes the motion. On July 3, 2020, the parties appeared to be heard on the petition. The petition was amended thru July 2020, bringing outstanding arrears to $20,150.00. Respondent interposed a warranty of habitability defense and the court ordered the respondent to grant petitioner access for necessary repairs on August 5, 2020, August 6, 2020, August 12, 2020, and August 13, 2020. The matter was adjourned to August 18, 2020 for control. On August 18, 2020 the petition was amended, bringing outstanding arrears to $21, 700.00. The matter was adjourned to September 1, 2020 for a virtual settlement conference. On September 1, 2020, respondent appeared with counsel. Respondent’s counsel argued that the petition was defective because petitioner failed to plead the regulatory status of the tenancy. Paragraph 8 of the petition states: 8. The Premises are not subject to rent control or the Emergency Tenant Protection Act of 1974, as amended (ETPA), by reason of the fact that the building in which the Premises are located has less than the requisite number of apartments to subject it to any rent regulations. Respondent argued that the tenancy was in fact subject to the ETPA. Petitioner’s attorney could not affirmatively state the accuracy of the petition. The Court ordered petitioner’s counsel to verify the regulatory status of the subject premises within 24 hours. On September 2, 2020, petitioner’s counsel confirmed that the tenancy is subject to the ETPA. The Court set down a motion schedule to address the claims. In support of the motion to dismiss, respondent affirms that she used to reside at the subject premises with her eight-year old daughter and six-month old daughter. She states that she was ordered to vacate her home as a result of a vacate order issued by the Mount Vernon Building Department due to the hazardous conditions in her apartment. A copy of a letter dated August 18, 2020 from the Building Department addressed to the Department of Social Services is attached to the papers. It provides that inspections were performed at the premises on August 18, 2020. After the inspections, the building, including respondent’s apartment, was declared “‘Unsafe’ under Chapter 106, Article 1 of the Mount Vernon Building Coed and/or ‘Unfit for Human Occupancy’ under the 2020 Property Maintenance Code of New York State.” Respondent was directed to vacate immediately. Respondent affirms that her apartment has been in disprepair as far back as 2018. In August 2019, after the landlord failed to make necessary repairs, respondent contacted the Building Department about the conditions in her apartment. Respondent maintains that she was not aware the she was residing in an apartment governed by the ETPA until she was informed by her counsel. As a result, she argues that she was ignorant of her rights and failed to reach out to the Division of Housing and Community Renewal (“DHCR”) for assistance in rectifying the conditions in her apartment. Respondent maintains that she was not aware that she could file a rent reduction for decreased services complaint with DHCR. She also argues that she was not aware that her landlord failed to register her apartment with DHCR for the past three years. Respondent argues that she believed filing a complaint with the Building Department and withholding her rent since June 2019 was the only option she had to get the petitioner to make the repairs. She argues that the petitioner inexcusably delayed in addressing the issues and commencing this nonpayment action against her. Respondent maintains that the petitioner’s delay in commencing the action makes it difficult for her to obtain rental payment assistance from the Department of Social Services once the apartment is restored and habitable. She states that she has no intention of abandoning the apartment and wants to live in a safe home with her children. In opposition to the motion, the petitioner argues that the simple misstatement about the regulatory status of the tenancy in the petition is merely a clerical error. Petitioner argues that this error is of no consequence as the respondent has not suffered any prejudice. Petitioner argues that contrary to respondent’s claim that she was not aware she was living in an apartment subject to the ETPA, the parties signed an ETPA Lease on May 4, 2018. A copy of the lease is attached as Exhibit C. Petitioner also argues that Paragraph 29 of the rider to the ETPA lease indicates that the lease is subject to rent stabilization law. A copy of the rider is attached to the papers as Exhibit D. Petitioner further argues that the laches defense in inapplicable in this proceeding because petitioner demanded the rent from respondent informally and advised her that rent arrears would be sought in a legal action. Petitioner’s property manager, Monica Goodwin affirms that respondent has been routinely late in making rent payments since the inception of her tenancy. She affirms that on September 11, 2019, she sent respondent correspondence via certified mail demanding payment of outstanding rent and advised her to make her request for repairs in writing. A copy of the letter and certified mail receipt is attached to the papers as Exhibit A. Accordingly, petitioner argues that respondent has not suffered any prejudice and argues that the motion must be denied. In reply, respondent argues that the failure to plead the regulatory status of the tenancy is a fundamental misstatement or omission and not a simple misstatement as argued by the petitioner. Respondent argues that this fundamental misstatement or omission renders the petition jurisdictionally defective and subject to dismissal. Respondent further argues that the lease agreement did not make her aware that the tenancy was subject to the ETPA. She maintains that the lease cannot be easily understood by a lay person and that it contains various conflicting terms. Specifically, Paragraph 27 of the rider to the lease states, “If this apartment is subject to the Emergency Tenant Protection Act (ETPA)…”.. Respondent argues that letter attested to by Ms. Goodwin is sparse, in that it is not dated, not on company letterhead, only addressed to a woman by her first, and signed by an unknown party only referenced as management. Respondent argues that there is no proof that she ever received the letter. Furthermore, petitioner did not affix the rent demand to its motion papers. Respondent argues that petitioner should not be permitted to seek a possessory judgment for rent arrears that accrued prior to October 2019. A summary proceeding is a special proceeding governed entirely by statute and it is well established that there must be strict compliance with the statutory requirements to give the court jurisdiction (See Goldman Bros. v. Forester, 62 Misc 2d 812 [N.Y. Civ. Ct. 1970]). A petition in a summary proceeding is sufficient if it sets forth sufficient facts so that respondent may adequately frame a defense (Tompkins Park-St. Marks Associates v. Boz Boz II Enterprises, Ltd., 177 Misc 2d 949 [1998]. RPAPL §741 provides that a petition must state, inter alia, the interest a tenant has in the premises and the facts upon which a proceeding is based. When the tenancy is subject to a specific rent regulation, the petition must state the tenant’s regulatory status because this status will determine the scope of the tenant’s rights in the summary proceeding (Cintron v. Pandis, 34 Misc 3d 152 (A) [2d Dept. 2012]). Despite its amendability, a petition that fails to sufficiently state the facts upon which it is based may be dismissed (Jericho Project Lessee v. Marte-Travera, 67 Misc 3d 1204 (A). A simple misstatement concerning the regulatory status of a tenancy will not render the petition jurisdictionally defective (Routolov Garzillo, 86788/15, NYLJ 1202781160330 at 1 (Civ Ct. Kings co, Decided February 16, 2017); 2017 NYLJ LEXIS 659 (citing 17th Holding LLC v. Rivera, 195 Misc 2d 531 [2d Dept 2002]). However, where a petition contains ‘fundamental misstatements and omissions’ it will be dismissed (Cintron v. Pandis, 34 Misc 3d 152(A) (citing Jeffco Mgt. Corp. Local Dev. Corp. of Crown Hgts., 22 Misc 3d 141 (A) [App. Term 2d, 11th 7 13th Jud Dists 2009]; see also Mc Fadden v. Sassower, 26 Misc 3d 141(A) [2d Dept 2010]); Joseph M. d’Assern Hous. Corp. v. Day, 24 Misc. 3d 132(A) [2d Dept 2009] (holdover petition dismissed failure to plead Mitchell-Lama regulatory status of tenancy). In the instant case, the petition clearly states that the respondent entered into possession of the subject premises under a rental agreement, wherein respondent promised to pay rent in the amount of $1,550.00 per month. The petition also states the premises are not subject to rent control or the Emergency Tenant Protection Act of 1974 (ETPA). Petitioner conceded that the premises are in fact subject to the ETPA. Petitioner, did not move to amend the petition to reflect the correct regulatory status or attach a copy of the proposed amended pleading. Nevertheless, the Court finds that the petition did not adequately put the Court and tenant on notice of the facts giving rise to the tenancy. In Migliaccio v. Childs, 65 Misc 3d 131 (A) [2d Dept. 2019], the petition alleged that the apartment was “not subject to rent regulation by reason of being located in premises of less than six families in which there was a vacancy after July 1, 1971.” The Second Department found that this was a fundamental omission because the apartment had been treated as a rent stabilized apartment and registered with DHCR since the inception of the tenancy in 1988. The court held that with this omission, the petition failed to satisfy the requirements of RPALPL §741 and was properly dismissed by the lower court. Accordingly, for the reasons stated above the Court finds that the petition contains fundamental misstatements and omissions necessitating dismissal of the action. [Migliaccio v. Childs, 65 Misc 3d 131 (A) [2d Dept. 2019]; [Brookwood Coram I, LLC v. Oliva, 47 Misc 3d 140(A); Citron v. Pandis, 34 Misc 3d 152 (A) [2d Dept. 2012]; Dwyer v. Wimbush, 62 Misc 3d 1213 (A) (City Ct. Mt. Vernon 2019]; see also Routolo v. Garzillo, 86788/15, NYLJ 1202781160330 (holding allegation that premises was decontrolled by DHCR order not a mere misstatement but a fundamental one warranting dismissal of the summary proceeding). In light of the foregoing, respondent’s laches defense is deemed moot. Motion to dismiss granted. This constitutes the Decision and Order of this Court. The court considered the following papers on this motion: Notice of Motion to Dismiss, dated September 21, 2020; Carter Affidavit; Affirmation in Support; Exh. A-B. Affirmation in Opposition, dated September 28, 2020; Goodwin Affidavit; Exh. A-E. Reply Affirmation, dated October 4, 2020. Dated: October 15, 2020
