The following papers numbered 1 to 2 were read and considered on the Petitioner’s motion to renew inquest on default. Papers Numbered Notice of Motion and Affidavits Annexed 1 Order to Show Cause and Affidavits Annexed Affirmation/Affidavits in Opposition 2 DECISION AND ORDER Petitioner commenced the above-entitled proceeding seeking to recover possession as well as use and occupancy. The Respondent appeared on the initial return date of December 2, 2020 and failed to appear on the following five (5) adjourn dates through June 2, 2021. Petitioner moved for a default judgment which was denied on for Petitioner’s failure to serve Respondent with notice pursuant to CPLR §3215(g) (1) and as the amount sought exceeded the amount permitted by law. See, RPL §702; CPLR §3215(b). By motion dated October 1, 2021, Petitioner moved to renew the inquest on papers and sought a judgment of possession. Respondent appeared on the return date of October 22, 2021 and the matter was adjourned to November 22, 2021 for opposition. The matter then appeared on the court’s calendar on January 5, 2022. The motion was filly submitted on January 26, 2022. Ironically, while Petitioner failed to appear on every court date after June, 2021, Petitioner alleged that Respondent failed to answer or offer an excuse for her default and failed to appear in all but one conference before the court. Respondent, by her attorney, Legal Services of the Hudson Valley, opposed the motion on the grounds that Respondent appeared through counsel and sought a dismissal of the above matter. Petitioner did reply. CPLR §2221(e) provides that a motion for leave to renew “[s]hall be based on new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination; and shall contain reasonable justification for the failure to present such facts on the prior motion.” Here, other than annexing a copy of the default notice sent to Respondent, Petitioner fails to state any new facts or provide a reason for its failure to attach this document on the prior application. Further, and importantly, Petitioner requests a default judgment despite the Respondent’s appearance with counsel. The Petitioner’s motion is accordingly denied. The Court now turns to Respondent’s application to dismiss. The application was made without service of a notice of cross motion or in the form of a cross motion. Rather, Respondent submitted an affirmation in opposition in which Respondent requested dismissal. Petitioner did not oppose the requested relief or submit a reply. CPLR §2215 sets forth the general rule for a party seeking relief in connection with another party’s motion. Under the statute, such relief is traditionally made by notice of a cross motion demanding relief. However, the court has discretion to grant the requested relief. (See, Tulley v. Straus, 265 A.D.2d 399 [1999] ; Fox Wander W. Neighborhood Assn., v. Luther Forest Community Assn., 178 A.D.2d 871 [1991] ; Catania v. Lippman, 998 A.D.2d 826 [1983]. Before reaching the merits of the application, the court must first evaluate whether to deem the opposition a motion for relief. First, the underlying proceeding and Respondent’s motion are interrelated. Rodriguez v. County of Rockland, 43 A.D.3d 1026 (2d Dept., 2007). The petition is premised on an alleged hold over following the Respondent’s lease expiration. The motion to dismiss is based on Petitioner’s failure to offer Respondent a renewal lease agreement pursuant to the Housing Stability and Tenant Protection Act of 2019 (“HSTPA”) following the Respondent’s lease expiration. There is no dispute that the rent registration history confirms Respondent’s apartment is subject to the Emergency Tenant Protection Act (“ETPA”) of 1974. In addition, the relief requested is clearly prominent at the beginning and in the wherefore clause of the opposition papers and the Petitioner had an opportunity to submit a reply addressing the request. Tulley v. Straus, 265 A.D. 2d 399, 401 (2d Dept., 1999). The Court may not reasonably conclude that Petitioner inadvertently overlooked the application. Finally, Respondent’s application is supported and clearly articulated. Plateis v. Flax, 54 A.D.2d 813 (3d Dept., 1976). As such, it is in the interest of judicial economy to consider Respondent’s application. Pursuant to ETPR 2504.2, a termination of Respondents ETPA lease can only be terminated on the following grounds: a) violating a substantial obligation of the tenancy b) committing nuisance c) illegal occupation of the apartment d) using the apartment for an illegal purpose e) unreasonably denying access to the apartment f) failing to renew an expiring lease or g) violation of sublet provisions. ETPR 2504.2 (a-g). Furthermore, the Housing Stability and Tenant Protection Act of 2019 significantly amended the ETPA effective June 14, 2019. L. 2019 ch. 36 (parts A-L). When Respondent’s lease expired on October 31, 2020, Petitioner was required to offer her a new lease on “[t]he same terms and conditions as the expired lease.” 9 NYCRR 2522.5 (b) (1); David v. New York City Conciliation & Appeals Board, 59 N.Y.2d 714 (1983). In the present matter, Petitioner sought possession of the apartment following the service of a termination notice providing Respondent a thirty (30) day notice to vacate. Petitioner failed to cite any of the ETPR grounds acceptable for the termination of Respondent’s ETPA tenancy and did not cite any ETPA regulations in the notice. A failure to serve a proper predicate notice prior to commencing a holdover proceeding is fatal to the holdover and requires dismissal. See, Westbeth Corp HDFC Inc v. Ramscale Productions Inc., 37 Misc.3d 13 (App. Term 2012). Petitioner failed to cite any of the ETPR grounds acceptable for the termination of Respondent’s ETPA tenancy and did not cite any ETPA regulations in the notice. Petitioners’ failure to allege good cause to terminate the lease and failure to offer a lease renewal are fatal. For the foregoing reasons, it is ORDERED, Petitioner’s motion to renew is denied; and it is further ORDERED, Respondent’s application to dismiss is granted; and it is further ORDERED, the above-entitled matter is dismissed without costs. The foregoing constitutes the Decision and Order of the Court. Dated: February 9, 2022
