Davis v. Arthur

189 Misc. 2d 521, 733 N.Y.S.2d 854, 2001 N.Y. Misc. LEXIS 485

• Court: Mount Vernon City Court
• Decided: November 16, 2001
• Status: Published

Opinion

OPINION OF THE COURT

Adam Seiden, J.

In this holdover proceeding, petitioner seeks possession of 145 South Fourth Avenue, apartment 5, Mount Vernon, New York. The petition describes the premises and includes a copy of a 30-day termination notice along with an affidavit of service on both respondents. The petition states that the premises are subject to the Emergency Tenant Protection Act of 1974 and that the apartment rents and services have been registered with the New York State Division of Housing and Community Renewal. However, petitioner’s 30-day notice fails to include any grounds or describe any statutory basis for the termination of the tenancy.

Following a trial on the sufficiency of the petition, this court concludes that neither the termination notice nor the petition alleges the facts upon which the summary proceeding is based. The termination notice does not comply with Emergency Tenant Protection Regulations (9 NYCRR) § 2504.3 (b) (ETPR). Most significantly, the notice fails to set forth grounds for respondents’ removal. (Giannini v Stuart, 6 AD2d 418 [1st Dept 1958].) In MSG Pomp Corp. v Doe (185 AD2d 798 [1st Dept 1992]), the Appellate Division held that misrepresentation in a petition as to the rent-regulated status of premises so infected the proceeding as to deprive the court of subject matter jurisdiction requiring the dismissal of the petition. The same result is required here, where petitioner fails to include any reference to the ETPR provisions that authorize the termination of a protected tenancy.

Accordingly, the petition is dismissed.