Brookwood Coram I, LLC v Oliva

[*1] Brookwood Coram I, LLC v Oliva 2015 NY Slip Op 50607(U) Decided on April 16, 2015 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 16, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : GARGUILO, J.P., MARANO and CONNOLLY, JJ.
2013-1600 S C

Brookwood Coram I, LLC, Respondent,

against

Vincent Oliva Also Known as VINNY OLIVA, Appellant, -and- MARILYN OLIVA, Undertenant.

Appeal from a final judgment of the District Court of Suffolk County, Sixth District (Janine A. Barbera-Dalli, J.), entered July 15, 2013. The final judgment, after a nonjury trial, awarded possession to landlord in a holdover summary proceeding.

ORDERED that the final judgment is reversed, without costs, and the matter is remitted to the District Court for the entry of a final judgment dismissing the petition.

In this holdover proceeding, landlord seeks to recover possession of the subject apartment based on a claim that tenant's six-month lease expired on May 31, 2012 and was not renewed. Following a nonjury trial, the District Court awarded landlord a final judgment of possession.

Pursuant to RPAPL 741, a petition must state, among other things, the interest of the tenant and the facts upon which the proceeding is based. The tenant is entitled to a concise statement of the ultimate facts upon which the proceeding is based (Giannini v Stuart, 6 AD2d 418 [1958]). Where a tenancy is subject to a specific form of regulation, the petition must set forth the tenant's regulatory status, because this status may determine the scope of the tenant's rights (see Matter of Volunteers of Am.-Greater NY, Inc. v Almonte, 17 Misc 3d 57 [App Term, 2d & 11th Jud Dists 2007], affd 65 AD3d 1155 [2009]; 433 W. Assoc. v Murdock, 276 AD2d 360 [2000]). A petition which contains "fundamental misstatements and omissions" is subject to dismissal (see Jeffco Mgt. Corp. v Local Dev. Corp. of Crown Hgts., 22 Misc 3d 141[A], 2009 NY Slip Op 50455[U], *2 [App Term, 2d, 11th & 13th Jud Dists 2009]).

The instant petition contained fundamental omissions. Although the proof at trial established that tenant is the recipient of a Section 8 subsidy, the petition fails to allege this fact and fails to set forth facts explaining why tenant's lease, which was his initial lease for the subject apartment, was not for a one-year term, as required by the governing federal regulation (24 CFR 982.309 [a] [1]). Consequently, the petition failed to satisfy the requirements of RPAPL 741 and should have been dismissed (see Cintron v Pandis, 34 Misc 3d 152[A], 2012 NY Slip Op 50309[U] [App Term, 9th & 10th Jud Dists 2012]; Joseph M. d'Assern Hous. Corp. v Day, 24 [*2]Misc 3d 132[A], 2009 NY Slip Op 51377[U] [App Term, 9th & 10th Jud Dists 2009]; see also Park Props. Assoc., L.P. v Williams, 38 Misc 3d 35 [App Term, 9th & 10th Jud Dists 2012]).

Accordingly, the final judgment is reversed and the matter is remitted to the District Court for the entry of a final judgment dismissing the petition.

Garguilo, J.P., Marano and Connolly, JJ., concur.

Decision Date: April 16, 2015