DECISION AND ORDER Petitioner (Four Quarters Inc.) commenced this nonpayment proceeding on March 26, 2021 seeking to recover rental arrears in the amount of $6,505.00 for periods from January 2020 through January 2021 and the issuance of a warrant of eviction and judgment of possession against Respondent (Sharon Davis), along with $180.00 for attorney fees. The Petition alleges, inter alia, that the premises are not subject to rent control or the Emergency Tenant Protection Act of 1974 (EPTA) because the building in which the Premises are located was constructed after December 31, 1973. The case first appeared on the court’s calendar on April 20, 2021. The Respondent did not appear and the matter was adjourned to May 19, 2021. On that date, the matter was again adjourned to May 26, 2021. On May 26, 2021 both parties appeared. Respondent disputed the alleged rents in arrears, asserting that she paid her share of the Section 8 rents and would provide proof of payment. The court referred Respondent to Legal Services of the Hudson Valley (LSHV) to obtain legal representation and informed her to complete the Covid-19 Declaration Form if she suffered a Covid financial hardship. The case was adjourned to June 16, 2021. On June 16, 2021, both sides appeared, and the Respondent stated that she sent rent receipts as proof of rent payments to Petitioner’s attorney office. Respondent raised a breach of warranty of habitability defense complaining of poor conditions in the apartment including non-working stove and no heat or hot water for three months. She sought a rent abatement for Petitioner’s alleged failure to provide services and habitable conditions. The case was adjourned to July 20, 2021 and on that date further adjourned to August 25, 2021, then to September 16, 2021. Tenant was referred again to LSHV for legal representation. On September 16, 2021, the Respondent failed to appear. Petitioner made a motion for default judgment dated September 17, 2021 and the matter was set down for an inquest and default hearing to be held October 12, 2021. On October 12, 2021, the Respondent did not appear. Stan Palmiotto, the Presidents of Four Quarters Inc, appeared with Petitioner’s counsel and testified that the monthly rent was $1,400.00 and Respondent owed $3.906.00 of rents in arrears for 2.7 months for part of August 2021, September 2021, and October 2021. Palmiotto further testified that Davis was a cooperative tenant, and that portion of her rent was paid by Section 8. He explained that prior to September 2019, Section 8 paid $949 per month and Davis’ paid $451.00. After September 2019, Section 8 paid $500.00 and Davis paid $900.00. Palmiotto could not clearly explain how the rents were credited to Davis’ account, stating that she made partial payments of varying amounts at various times. He testified receiving two money orders last week from Davis for $51.00 and $301.00. Petitioner’s counsel objected to the court considering Respondent’s warranty of habitability claim in determining the money judgment being sought by Petitioner, arguing that Respondent has not submitted sufficient proof to support any rent abatement. The Petitioner did not produce a rent ledger. At the hearing, the Petitioner failed to establish the rents in arrears for the court to determine if Respondent was in default. 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 [NY 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 [1st dept. 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), 950 NYS2d, [App.Term, 2nd 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) [Civ Ct. Bronx Co. 2020]). 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]) and may be overlooked where no prejudice results to the tenant (Park Props. Assoc., LP v. Williams, 38 Misc 3d 35 [App Term 9th & 10th Jud Dists 2012]). 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) [App Term, 2nd dept. 2010]). In addition, Federal Regulation 24 CFR 982.310 (e)(2)(ii) requires that the owner-landlord seeking to terminate a tenancy under the Section 8 program to give the housing administrator a copy of the eviction notice(s) served on tenants including the Notice of Petition and Petition. In the instant case, the petition states that the Respondent entered into possession of the subject premises under a rental agreement with Petitioner, wherein Respondent promised to pay rent in the amount of $1400.00 per month. The petition also states the premises are not subject to rent control or ETPA because the building was constructed after December 31, 1973 effective date of ETPA. Petitioner failed to plead in its petition that the Respondent’s tenancy is subsidized by Section 8; and that the Section 8 administrator (CVRNY) was served with all notices related to the eviction proceedings. There is no evidence that Petitioner served CVRNY with any notice including the Notice of Petition and Petition, as no affidavit of service on CVRNY or any proof of service was filed with the court. Petitioner’s President, Mr. Palmiotto, testified that Respondent is a Section 8 tenant and that Petitioner collected portion of the monthly rent directly from Section 8 for over 2 years — at least since 2019. Thus, there is no dispute that Petitioner knew of Respondent’s section 8 regulatory status at the time it filed the petition. The pleading of the Section 8 regulatory status is required to determine the scope of the rights of the parties as well as the way the court proceeds with the action. This is especially relevant here where Respondent dispute being in arrears for her share of the Section 8 rent and where the alleged poor conditions in the apartment implicate Section 8 inspection standards. A petition that failed to plead the Section 8 status of the tenancy and did not comply with Section 8 regulatory scheme was dismissed as defective, even when the tenant failed to appear. See Homestead Equities v. Washington, 176 Misc.2d 459; 672 N.Y.S.2d 980, N.Y. Slip Op. 98225, Civ.Ct. NYC, Kings County (1998) (holding that on a motion for a default judgment the court, sua sponte, is obliged to review the sufficiency of the petition to determine whether the pleadings are sufficient). See also, P.S. Street F.L.P v. Demos, 17 Misc.3d 1139(A), Civ. Ct. NYC, Kings County (2007). Accordingly, for the reasons stated herein, the Court finds that the Petition contains fundamental misstatements and omissions necessitating dismissal of the proceeding. See Migliaccio v. Childs, 65 Misc 3d 131 (A) [2d Dept. 2019]; Brookwood Coram I, LLC v. Oliva, 47 Misc 3d 140(A), [App. Term 2d Dept. 2012]; Citron v. Pandis, 34 Misc 3d 152 (A) [2d Dept. 2012]; Dwyer v. Wimbush, 62 Misc 3d 1213 (A) (City Ct. Mt. Vernon 2019]); Levister Redevelopment v. Pena, 69 Misc.3d 1216(A) (City Ct. Mt. Vernon 2020). Petitioner’s motion for default judgment is denied and the Petition is dismissed. This constitutes the Decision and Order of this Court. Dated: October 15, 2021
