Recitation, as required by CPLR §2219(a), of the papers considered in the review of this motion: Papers Numbered Respondent’s Motion, affirmation, affidavit, exhibits NYSCEF 10-21 Petitioner’s Cross-Motion, Affirmation, Affidavit NYSCEF 22-23 Respondent’s Reply NYSCEF 25-34 Papers Considered: (NYSCEF Doc. Nos. 1 through 34) DECISION/ORDER Petitioner brought this holdover proceeding seeking possession of what is described as an unregulated apartment on the first floor of 461 Jefferson Avenue in Brooklyn. Respondent Regina Williams moves to dismiss this proceeding, alleging that the Notice of Petition served by Petitioner failed to incorporate the information required by NYCRR 208.42[b], as amended by Administrative Order 163/19.1 Petitioner cross-moves to amend the petition. Upon the foregoing papers, the court grants Respondent’s motion and denies Petitioner’s cross-motion for the reasons stated below. On August 7, 2019, NYCRR 208.42[b] was amended via Administrative Order 163/19. This Administrative Order promulgated new form notices of petition to be served in summary proceedings such as the one at bar. The administrative order made use of these forms mandatory after September 30, 2019, and repealed all former notices of petition. The new notice of petition form contained new language not included in prior iterations. Respondent’s moving papers identify several instances wherein the instant notice of petition fails to conform with the mandated form notice of petition (Resp. Affirmation in Support, NYSCEF Doc. 11 at 39.). “[A] substantive error or omission in a Notice of Petition, as occurred here, is akin to a defective predicate notice, as it provides important information to the respondent in advance of the first court date and is a part and parcel of commencement itself’ M & S Queens Realty LLC v. London, 79 Misc.3d 788 [Civ. Ct. Queens County, 2023] [internal citations omitted]. Accordingly, the court finds that petitioner’s failure to use the mandated notice of petition form requires dismissal of this matter. Petitioner cross-moves to amend the petition. She fails, however, to annex the proposed amended petition to her cross-motion and is unclear as to what amendments she would be making. This alone would require denial on the cross-motion as petitioner failed to abide by the terms of CPLR §3025 [b]. Even if petitioner had clearly shown that she wished to amend the notice of petition to conform to the new form notice of petition, the court would deny the petitioner’s motion since the defect in the notice of petition are akin to defect in the predicate notice and are therefore not amendable. M & S Queens Realty LLC v. London, supra.; Chinatown Apts. V. Chu Cho Lam, 51 N.Y.2d 786, 412 N.E.2d 1312, 433 N.Y.S.2d 86 [1980]. The court has considered the remainder of Petitioner’s arguments in opposition and found them to be without merit. ORDERED: Respondent’s motion is GRANTED, and petitioner’s cross-motion is DENIED. The matter is DISMISSED. Dated: September 29, 2024
