Recitation of the papers considered in reviewing the underlying motion as required by CPLR §2219(a) Papers Numbered Respondent’s Notice of Motion, Affirmation, Affidavits, and Exhibits in Support 1 Petitioner’s Affirmation in Opposition, and Exhibits in Support 2 Respondent’s Reply 3 DECISION AND ORDER This is a commercial landlord tenant summary proceeding for non-payment of rental arrears. Respondent 1450 Metropolitan Ave. Corp., d/b/a Kids Place (1450 Metropolitan) motion was orally argued on April 9, 2024, on the Courts FTR recording in Room 529A, both Petitioner and Respondent appeared by counsel. Respondent moves for an Order pursuant to 22 NYCRR §208.42 and CPLR §3211(a)(8) dismissing this proceeding for lack of personal jurisdiction for reasons which include (i) the defective nature of the Notice of Petition used to initiate this proceeding which fails to comport with the form Notice of Petition which the law requires that landlord’s use in Non-Payment proceedings, and (ii) because the Notice of Petition and Petition were not served upon the Respondent in accordance with the requirements of the lease between the parties. In opposition Petitioner PPC Commercial LLC (PPC Commercial) contends that the Notice of petition form is not improper and that the use of this form does not implicate the personal jurisdiction of this Court since respondent argues the form is improper based upon its content, not service of process. Further Petitioner argues that 22 NYCRR §208.42 applies only to residential housing court proceedings. Petitioner commenced this non-payment summary proceeding on February 27, 2024, with the filing of the Notice of Petition, seeking rental arrears. Respondent did not file an answer and instead filed the instant motion. Respondent moves for dismissal of the Petition and argues that Petitioner failed to use the form Notice of Petition required by 22 NYCRR §208.42 and RPAPL §732. The statute, 22 NYCRR §208.42, reads in relevant part as follows. (a) Such proceedings involving residential property shall be commenced in the housing part. (b) The chief administrator of the courts shall promulgate, and post on the Unified Court System website, a form notice of petition for mandatory use in eviction proceedings involving residential property under Article 7 of the Real Property Actions and Proceedings Law (other than in proceedings brought on the ground that the respondent has defaulted in the payment of rent). (c) Real Property Action and Proceedings Law section 732 shall be applicable in this court in a proceeding brought on the ground that the respondent has defaulted in the payment of rent. The chief administrator of the courts shall promulgate, and post on the Unified Court System website, a form notice of petition for mandatory use in such proceedings. However, the referenced statute is applicable in residential summary proceedings. Specifically, 22 NYCRR §208.42(b) states that in pertinent part that “a form notice of petition for mandatory use in eviction proceedings involving residential property…. other than in proceedings brought on the ground that the respondent has defaulted in the payment of rent.” This case involves a Commercial Non-Payment proceeding. Respondent references several cases in his motion that relate to failure to use the Notice of Petition form mandated under 22 NYCRR §208.42 in residential summary proceedings. See M & S Queens Realty LLC v. Kim London, 79 Misc 3d 788 (Civ Ct, NY Cty 2023) (respondent tenant was assisted by NYLAG and the cases cited within this matter reference residential proceedings); Mautner-Glick Corp., et al v. Haley Glazer, 148 AD3d 515 (1st Dept 2017) (the matter concerns a residential holdover proceeding). Respondent relies heavily on a lower court case, 30 Broad Street Venture LLC v. Broad Street Suites LLC, LT-314363-23NY (Civ Ct, NY Cty 2024) in support of his argument. However, this case is not binding authority on this Court. While the matter in 30 Broad Street Venture. supra involves a commercial landlord tenant summary proceeding the court there held that the Notice of Petition contained substantive defects and thus failed to give proper notice. (Court held the notice of petition failed to notify the respondent of the time within which they must answer or appear). Here, the Petition does not contain the substantive defects as in 30 Broad Street and provides proper notice as required by RPAPL §732. RPAPL §732 contains special provisions applicable in non-payment proceeding if the rules so provide and reads as follows. If the appropriate appellate division shall so provide in the rules of a particular court, this section shall be applicable in such court in a proceeding brought on the ground that the respondent has defaulted in the payment of rent; in such event, all other provisions of this article shall remain applicable in such proceeding, except to the extent inconsistent with the provisions of this section. 1. The notice of petition shall be returnable before the clerk and shall be made returnable within ten days after its service. 2. If the respondent answers, the clerk shall fix a date for trial or hearing not less than three nor more than eight days after joinder of issue, and shall immediately notify by mail the parties or their attorneys of such date. If the determination be for the petitioner, the issuance of a warrant shall not be stayed for more than five days from such determination, except as provided in section seven hundred fifty-three of this article. 3. If the respondent fails to answer within ten days from the date of service, as shown by the affidavit or certificate of service of the notice of petition and petition, the judge shall render judgment in favor of the petitioner and may stay the issuance of the warrant for a period of not to exceed ten days from the date of service, except as provided in section seven hundred fifty-three of this article. 4. The notice of petition shall advise the respondent of the requirements of subdivisions 1, 2 and 3, above. In this case, Respondent claims that the Notice of Petition fails to conform to RPAPL §732 because, “(a) It does not state that the landlord is asking the Court for permission to evict the Respondent if Respondent does not pay the money judgment obtained by the landlord, (b) It does not say that the Respondent has a ‘right to trial,’ (c) It does not state that Respondent has ‘a right to postpone that date (the court date) for 14 days but you have to come to the courthouse to ask for a postponement,’ and (d) It does not state that ‘If you pay all rent due before your court date, the case will be dismissed.’” (Assis affirmation,
