of the State of New York for the 9th & 10th Judicial Districts

BRUCE E. TOLBERT, J.P.

JERRY GARGUILO

TERRY JANE RUDERMAN, JJ.

DECISION & ORDER ON MOTION

Motion by respondent on an appeal from a final judgment of the District Court of Suffolk County, Third District (Janine A. Barbera-Dalli, J.), entered June 14, 2018, to vacate a stay granted by decision and order on motion of this court dated August 7, 2018, and extended by decision and order on motion of this court dated December 20, 2018. Separate motion by appellant to continue the stay. The final judgment awarded respondent possession in a nonpayment summary proceeding. The appeal from the final judgment brings up for review an order of that court entered May 10, 2018 denying appellant's motion to open her default in appearing and answering the petition.

Upon the papers filed in support of the motions and the papers filed in opposition thereto, it is

ORDERED, on the court's own motion, that respondent's motion and appellant's motion are consolidated for purposes of disposition; and it is further,

ORDERED, on the court's own motion, that the final judgment is summarily reversed, without costs, the order entered May 10, 2018 denying appellant's motion to open her default in appearing and answering the petition is vacated, appellant's motion to open her default is granted, and the petition is dismissed; and it is further,

ORDERED that respondent's motion and appellant's motion are denied as academic.

In this nonpayment proceeding, a review of the record indicates that the District Court committed clear legal error in entering a final judgment on a facially defective petition. The petition alleges that rent was demanded "personally in writing," but the petition does not state the manner of service of the rent notice and neither a copy of the rent notice nor an affidavit of its service is attached to the petition.

"In a nonpayment proceeding, when the petition alleges the service of a statutory rent notice (RPAPL 711 [2]), the petition must state the manner of service, or the affidavit of service of the notice must be attached to the petition (Witherbee, Sherman & Co. v Wykes, 159 App Div 24, 25 [1913]; Beach v McGovern, 41 App Div 381 [1899]; Fitzgerald v Washington, 80 Misc 2d 861, 864 [1975]; see RPAPL 741 [4]; see also CLS RPAPL 741, Advisory Committee Notes [stating that a statutory notice is one of the facts upon which the special proceeding is based']). In light of the facial insufficiency of the pleadings, it was error for the court to award landlord a default final judgment, and this judgment must be vacated" (Kentpark Realty Corp. v Lasertone Corp., 3 Misc 3d 28, 31 [App Term, 2d Dept, 2d & 11th Jud Dists 2003]; see also Martine Assoc. LLC v Minck, 5 Misc 3d 61 [App Term, 2d Dept, 9th & 10th Jud Dists 2004]).

In light of the defects in the petition, the petition is dismissed (see Merrbill Holdings, LLC v Toscano, 59 Misc 3d 129[A], 2018 NY Slip Op 50410[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2012]).

We note, in any event, that appellant established an adequate excuse for the default, in that she was ill on the return date of the petition, and the existence of arguably meritorious defenses, including partial payment of the rent sought in the petition and landlord's misapplication of her rent payments toward other fees.

TOLBERT, J.P., GARGUILO and RUDERMAN, JJ., concur.

ENTER:

Paul Kenny

Chief Clerk