Opinion
2012-11-26
PARK PROPERTIES ASSOCIATES, L.P., Respondent, v. Andrew WILLIAMS, Appellant.
Barbara Finkelstein, Legal Services of the Hudson Valley, Yonkers (Jeanne Schoenfelder of counsel), for appellant. Eric A. Sauter, Armonk, for respondent.
Barbara Finkelstein, Legal Services of the Hudson Valley, Yonkers (Jeanne Schoenfelder of counsel), for appellant. Eric A. Sauter, Armonk, for respondent.
Present: NICOLAI, P.J., IANNACCI and LaSALLE, JJ.
Appeal from an order of the City Court of Yonkers, Westchester County (Robert C. Cerrato, J.), entered December 13, 2011. The order denied tenant's motion, in effect, to vacate a stipulation of settlement and the final judgment entered pursuant thereto.
ORDERED that the order is reversed, without costs, and tenant's motion, in effect, to vacate the stipulation of settlement and the final judgment entered pursuant thereto is granted.
In this holdover proceeding commenced in October 2010 based upon a clutter condition in the subject apartment, the petition, which alleges that the apartment is decontrolled, fails to allege that the apartment is in a building that receives a project-based Section 8 subsidy. After the proceeding was adjourned a number of times, during which period the conditions in the apartment remained uncured, the parties entered into a stipulation of settlement providing that tenant would move out by July 31, 2011 unless the apartment passed an inspection on July 12, 2011, in which event tenant would be permitted to remain in the apartment until August 31, 2011. Thereafter, tenant moved, in effect, for relief from the stipulation and the final judgment entered pursuant thereto, alleging, among other things, that the apartment had passed inspection on July 12, 2011; that he believed that if the apartment passed inspection he would be permitted to remain in the apartment; and that he was entitled to a reasonable accommodation under the Fair Housing Amendments Act (FHAA)(42 USC § 3601 et seq. ; see generally Overlook Mut. Homes, Inc. v. Spencer, 415 Fed.Appx. 617 [6th Cir.2011];RCG–UA Glenwood, LLC v. Young, 9 Misc.3d 25, 801 N.Y.S.2d 481 [App. Term, 9th & 10th Jud. Dists.2008] ). The City Court denied tenant's motion.
In our view, tenant's motion should have been granted. As tenant contends on appeal, pursuant to RPAPL 741, a petition must state the facts upon which the proceeding is based. Where a tenancy is subject to a specific type 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 N.Y., Inc. v. Almonte, 65 A.D.3d 1155, 886 N.Y.S.2d 46 [2009],affg. 17 Misc.3d 57, 847 N.Y.S.2d 327 [App. Term, 2d & 11th Jud. Dists.2007];Cintron v. Pandis, 34 Misc.3d 152[A], 2012 N.Y. Slip Op. 50309[U], 2012 WL 603746 [App. Term, 9th & 10th Jud. Dists.2012] ). A petition which fails to satisfy this requirement is subject to dismissal. While a defect of this nature may be overlooked where no prejudice results to the tenant ( see 17th Holding LLC v. Rivera, 195 Misc.2d 531, 758 N.Y.S.2d 758 [App. Term, 2d & 11th Jud. Dists.2002];see also Coalition Houses L.P. v. Bonano, 12 Misc.3d 146 [A], 2006 N.Y. Slip Op. 51516[U], 2006 WL 2415878 [App. Term, 1st Dept. 2006] ), here, it cannot be said that landlord's failure to make the required allegation was not prejudicial to tenant, as the stipulation may have been the product of tenant's counsel's lack of knowledge of the fact that tenant stood to lose a Section 8 subsidy. Thus, the stipulation should be vacated as inadvisedly entered into ( see Matter of Frutiger, 29 N.Y.2d 143, 324 N.Y.S.2d 36, 272 N.E.2d 543 [1971] ).
In view of this result, we do not at this juncture reach the issues raised by tenant's request for a reasonable accommodation under the FHAA.
Accordingly, the order is reversed and tenant's motion, in effect, to vacate the stipulation of settlement and the final judgment entered pursuant thereto is granted.