Opinion
SP228805.
Decided August 18, 2005.
Steven Zalewsky Associates, P.C., Attorneys for Respondents, Kew Gardens, New York, Baram Kaiser, Esqs., Attorneys for Petitioners, Garden City, New York.
BACKGROUND
Petitioners Steven Israel and Adele Michael a/k/a Terry Polizzi commenced this holdover proceeding against respondents Joseph Perry and Ira Perry to evict them from 70 Shore Road, Apt. 2D, Long Beach, New York.
Petitioners allege in the notice of petition that a notice to quit was served on February 26, 2005 effective March 31, 2005, but no notice to quit is attached as alleged.
Petitioners claim in paragraph 6 that the premises are not rent controlled because:
The subject premises are not controlled by rent control, rent stabilization under ETPA in that Ira Perry vacated the premises in approximately 1992 and Joseph Perry did not reside with him for a requisite period of time as to entitle him to rent stabilization status.
Respondents' answer contains denials of the allegations of the petition and allege nine affirmative defenses.MOTION CROSS MOTION
Respondent moves to dismiss the petition on several grounds:
1. Letter of termination from attorneys Baram Kaiser fails to set forth the grounds for eviction as required by 9 NYCRR 2504, which is required for a rent stabilized apartment.
2. The service of the 30 notice of termination was improperly accomplished by mail instead of pursuant to the Real Property Law.
3. The petition is defective because it improperly alleges that Ira Perry vacated the premises in 1992 and that Joseph Perry did not reside with Ira Perry "for a requisite period of time as to entitle him to rent stabilization status."
The cross motion seeks to amend the petition to reflect that the petition mistakenly reversed the names Ira Perry and Joseph Perry when, "In fact, Joseph Perry vacated on or about 1992 and Ira Perry, his son, is in possession with what is claimed is no succession rights."
The Court grants the cross motion to amend the pleadings to reflect the true status of Ira Perry and Joseph Perry. Amendments should be freely granted in absence of prejudice which has not been demonstrated here. See Jordan v. McCauley, 178 Misc 2d 216, 679 NYS2d 880 (App Term 1998). In Rasch's Landlord Tenant, Fourth Edition, Hon. Robert F. Dolan, Section 41:36, the following appears:
A party may move in a summary proceeding for leave to amend his pleadings at any time, and absent surprise or undue prejudice, leave should be granted freely.
Respondent is incorrect that the within 30 day notice to terminate the tenancy can't be served by mail. Since the property is located outside New York City, service of the 30 day notice by mail is permitted. Boland v. Beebe, 186 Misc 616; McGloine v. Dominy, 233 NYS2d 161.
Respondent contends that the apartment is rent stabilized. Therefore, the notice of termination is required to "set forth a ground for eviction under the Rent Stabilization Code/Emergency Tenant Protection Act." Attached to the respondents papers are the Order and Determination of the State of New York Division of Housing and Community Renewal Office of Rent Administration dated June 17, 2002. The said order found that the apartment is "Rent Stabilized and that the tenant can not be evicted."
Respondent Ira Perry filed the complaint against Steven Israel/Mercury Capital. This finding is res judicata as to the issue of whether the apartment is subject to rent stabilization and covers all those in privity with the parties to the hearing. See Gramatian Home Investors Corp., 46 NY2d 481, 414 NYS2d 308; Landlord and Tenant Practice in New York, Finkelstein Ferrarra, Section 17:49.
Since the apartment is subject to rent stabilization, the petitioner is required to comply with Sec. 2504.4 of the Emergency Tenant Protection State Regulations by obtaining permission to maintain this action. Since there is no allegation or evidence that petitioner complied with the said regulations, this proceeding cannot be maintained. Specifically, petitioner didn't apply and receive permission to maintain this proceeding from the Division in accordance with Sec. 2504.4(a)(4), which states:
No action or proceeding to recover possession pursuant to this subdivision shall be commenced in court unless and until the owner shall have made application to the division and the division has issued an order permitting the owner to commence such action or proceeding in court and, in addition, where such order is subject to certain conditions and terms, until such conditions and terms have been complied with.
The Court notes that the failure of the petition to properly allege the proper rent stabilization status is not fatal and under proper circumstances the Court would deem the petition amended to reflect this fact. See 17th Holding LLC v. Rivera, 195 Misc 2d 531, 758 NYS2d 758 (App. Term 2002); Rasch's Landlord and Tenant, Section 41:33.
Finally, the allegations of petitioners' attorney, as to the succession rights of respondents and the right to evict the tenant under a co-op eviction plan are a nullity because he has no personal knowledge of these facts.
CONCLUSION
Since the petition fails to demonstrate that petitioner received permission to maintain this suit from the Division, this action cannot be maintained.
So Ordered: