Opinion
No. 2013–1600 S C.
04-16-2015
BROOKWOOD CORAM I, LLC, Respondent, v. Vincent OLIVA Also Known as Vinny Oliva, Appellant, and Marilyn Oliva, Undertenant.
Opinion
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 A.D.2d 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 A.D.2d 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 N.Y. 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 N.Y. Slip Op 50309[U] [App Term, 9th & 10th Jud Dists 2012] ; Joseph M. d'Assern Hous. Corp. v. Day, 24 Misc.3d 132[A], 2009 N.Y. 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.