Recitation, as required by CPLR 2219(a), of the papers considered in the review of respondent’s motion for leave to conduct discovery and inspection of documents. Papers Numbered Notice of Motion & Affidavits Annexed 1 Answering Affidavits & Cross-Motion 1 Replying Affidavits 1 Exhibits Memorandum of Law DECISION/ORDER Riverbay Corp. (“Petitioner”) commenced the instant holdover proceeding against Derrick Edwards (“Respondent”), and “John Doe” and “Jane Doe”, seeking to regain possession of 920 Baychester Avenue, Apartment 11E, Bronx, NY (“Premises”), on the grounds that Respondent Derrick Edwards and occupants were licensees of the subject premises. The Tenant of record and mother to Derrick Edwards, Pearl Edwards, permanently moved to a nursing home prior to September 2020. Petitioner’s Notice to Quit, dated September 17, 2020, alleges that Respondent is a licensee, and makes no reference to any allegations of nuisance or behavior that substantially infringes on the use and enjoyment of other tenants or occupants in the building. The Notice of Petition and Petition, date October 12, 2020, also do not reference any allegations of nuisance. The proceeding first appeared on the court’s calendar on February 10, 2021, on which date it was adjourned to March 3, 2021 and scheduled for a virtual conference. On March 3, 2021, Bronx Legal Services appeared and filed a Notice of Appearance on behalf of Respondent. The matter was then adjourned to April 20, 2021 upon Petitioner’s request for motion practice. On March 22, 2021, Petitioner filed a motion seeking an order amending the Petition to state the facts of continued and ongoing nuisance conduct, amending the Petition to reflect Alicia Cousins as the “Jane Doe” previously served as a Respondent, and deeming the proposed amended Petition served and filed. On April 7, 2021, Respondent filed a cross-motion, seeking an order denying Petitioner’s motion in its entirety, and a stay of this proceeding pursuant to the COVID-19 Eviction and Foreclosure Prevention Act of 2020 (CEEFPA) upon submission of a hardship declaration, and an appointment of a guardian ad litem for Respondent. Respondent filed a hardship declaration on April 13, 2021. On December 28, 2020 Governor Cuomo issued the COVID-19 Eviction and Foreclosure Prevention Act of 2020. The Act allowed for a stay of eviction proceedings through February 26, 2021 and an additional stay through May 1, 2021 upon the submission of a Tenant Hardship Declaration. The only cases that were not automatically stayed were proceedings based upon allegations that “the tenant is persistently and unreasonably engaging in behavior that substantially infringes on the use and enjoyment of other tenants or occupants or causes a substantial hazard to others. (CEEFPA, Part A, sec.9[1]. The Act specifically states that if a case did not previously contain such allegations, the Petitioner’s remedy is that a new petition must be filed, which must comply with all notice and service requirements under Article 7 of the Real property Actions and Proceedings Law. CEEPFA is clear that such allegations would need to be part of a new notice and petition. Courts have denied restoration when the petition did not allege behavior contemplated by CEEPFA. Begum v. Cole, 2021 NYLJ LEXIS 75. There, the court noted “[T]he Act also provides an additional caveat: if the proceeding which is sought to be restored to the court’s calendar DOES NOT allege persistent and unreasonable behavior, the Court should not grant the relief. Instead, the petitioner is required to commence a new proceeding with service of a petition that contains allegations of persistent and unreasonable behavior that substantially impacts the rights of other tenants or occupants in the subject building or creates a substantial safety hazard to others.” (Emphasis added). It has long been decided that a notice of termination cannot be amended. Chinatown Apts. v. Chu Cho Lam, 51 N.Y.2d 786; St. James Court, LLC v. Booker, 176 Misc.2d 693 (Civ. Ct. Kings Cnty., 1988); Henry & Baltic Assoc. v. K & A Food Corp., 7 Misc.3d 83 (App. Term 2d & 11th Jud. Dists., 2005). The record is clear that the notice served in this matter did not allege any nuisance allegations. And if the notice cannot be amended, the petition cannot be amended.” 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.” MSG Pomp Corp v. Jane Doe, 185 AD2d 798,799-800 (1st Dept. 1992). The right to terminate a tenancy is dependent upon the service of an adequate notice. Chinatown Apts. v. Chu Cho Lam, 51 NY2d 786,787 (1980). Service of a valid termination notice is not itself a pleading but a prerequisite to the commencement of a stautory proceeding. Kaycee West 113th St. Corp. v. Diakoff, 160 AD2d 573 (1st Dept 1990). A predicate notice is not itself a pleading, but a prerequisite to a proceeding, and is not amendable. Accordingly, under the facts and circumstances presented to this court, Petitioner’s motion to amend the petition must be denied. Because of the hardship declaration, that portion of Respondent’s cross-motion for a stay of the proceeding pursuant to CEEPFA is granted. Matter is adjourned to September 7, 2021 at 9:30AM for all purposes. This constitutes the decision and order of this Court. Dated: May 7, 2021
