Civil Court of the City of New York, Bronx County, February 11, 2020

Mobilization for Justice, Inc., Bronx (Andrew Jones of counsel), for respondent.

Novick Edelstein Pomerantz P.C., Yonkers (Gregory S. Bougopoulos of counsel), for petitioner.

After oral argument held on January 28, 2020, and upon the submitted papers, the decision and order on this motion is as follows:

This is a nonpayment proceeding commenced by 60 West 190th Realty LLC (petitioner), seeking possession of 60 West 190th Street, apartment 3-C, Bronx, NY 10468, naming Jacqueline Tupette Rodriguez (respondent) as the tenant of record. Petitioner commenced this action by written 14-day rent demand dated September 23, 2019, seeking $4,012.37 in rent arrears from June through September 2019 at a monthly rent of $1,146.42. A petition and notice of petition were thereafter served and filed, [*2]dated October 28, 2019. Paragraph seven of the petition states "the premises are not subject to rent control, rent stabilization or the Emergency Tenant Protection Act of 1974 because said premises are rented for business purposes."

Respondent filed a pro se answer and the proceeding was first scheduled to the court's calendar on December 2, 2019. On that day, respondent retained counsel with Mobilization for Justice through the "Universal Access" program, and now moves for the relief requested herein.

Respondent moves to dismiss pursuant to CPLR 3211 (a) (7), or in the alternative, for leave to amend the pro se answer. Respondent seeks dismissal on the grounds that the petition incorrectly states the apartment is an unregulated commercial premises when, in fact, they are rent-stabilized. Petitioner cross-moves to amend the petition to reflect the proper regulatory status, conceding the premises are rent-stabilized. Petitioner opposes respondent's motion to the extent it seeks dismissal. For the reasons stated below, respondent's motion to dismiss is denied, the cross motion is granted solely to the extent that the petition is deemed amended to reflect the apartment is subject{**67 Misc 3d at 364} to rent stabilization and respondent's request to serve and file the amended answer is granted.

In relevant part, section 741 of the Real Property Actions and Proceedings Law requires the petition in a summary eviction proceeding "[s]tate the respondent's interest in the premises and [their] relationship to petitioner with regard thereto," "[d]escribe the premises from which removal is sought," and "[s]tate the facts upon which the special proceeding is based." (RPAPL 741 [2]-[4].)

While this court recognized some continued viability of MSG Pomp Corp. v Doe (185 AD2d 798 [1st Dept 1992] [interpreting RPAPL 741 as requiring petitioner to plead the proper regulatory status of the subject premises]), the better rule is the one espoused by the Appellate Term, Second Department in 17th Holding v Rivera, "[i]n the absence of any demonstrable prejudice to tenant, we deem the petition amended to state that the premises is subject to rent stabilization" (195 Misc 2d 531, 532 [2002], citing Birchwood Towers #2 Assoc. v Schwartz, 98 AD2d 699, 700 [2d Dept 1983] ["A petition in a summary proceeding is no different than a pleading in any other type of civil case. A petition which may fail to state facts sufficient to constitute a cause of action or contains other pleading infirmities is capable of correction by amendment"]; Paikoff v Harris, 185 Misc 2d 372, 376 [App Term, 2d Dept 1999] ["in the absence of prejudice to a party, it is permissible to amend the pleadings in summary proceedings even with respect to misstatements of the rent-regulated status of the tenancy"]; see Shahid v Guzman, 2 Misc 3d 1, 3 [App Term, 2d Dept, 2d & 11th Jud Dists 2003]).

Courts in this Department have similarly held (see Coalition Houses L.P. v Bonano, 12 Misc 3d 146[A], 2006 NY Slip Op 51516[U] [App Term, 1st Dept 2006] [absent prejudice, no abuse in allowing amendment of misstatement in petition]; OLR ECW, L.P. v Myers, 59 Misc 3d 650, 657 [Civ Ct, Bronx County 2018] ["respondents have not pointed to any aspect of the regulatory agreement which affects their substantive rights or why the absence of a reference to it in the petition is prejudicial to them and warrants dismissal of the proceeding"]). Here, respondent alleges no prejudice and this court cannot discern any under the known facts.

To be sure, there remain instances where the failure to plead a specific form of regulation or regulatory status may require{**67 Misc 3d at 365} dismissal (see Westchester Gardens, L.P. v Lanclos, 43 Misc 3d 681, 685-687 [Civ Ct, Bronx County 2014]). Indeed, respondent cites to several cases where the proceeding was dismissed for such reasons. In Jasper, L.P. v Davis, this court dismissed a petition which alleged the premises were subject to rent stabilization, but which did not alert respondent or the court to additional regulatory schemes, namely a regulatory agreement with the New York City Department of Housing Preservation and Development (HPD), the Shelter Plus Care program, project-based Section 8, and Low-Income Housing Tax Credits (63 Misc 3d 1209[A], 2019 NY Slip Op 50448[U] [Civ Ct, Bronx County 2019]).^[FN1] These agreements should have been known to the court to properly adjudicate the matter, regardless of whether respondent could demonstrate prejudice.

In East 168th St. Assoc. v Castillo, the petition was dismissed as it failed to plead which particular Section 8 program the tenancy was subject to (60 Misc 3d 774 [Civ Ct, Bronx County 2018]). The court opined,

"the petitioner's conclusory statement that the premises are a HUD building that receives assistance under the Section 8 program is inadequate. The petitioner ignores that there are numerous Section 8 programs, each subject to different rules and requirements. The petition is silent as to by which Section 8 program the respondent's tenancy is governed . . .

"Pleading the particular Section 8 program would enable respondent and/or her attorney to discern exactly which requirements apply to her, and to determine the scope of her rights and defenses" (id. at 783-784; see Matter of Volunteers of Am.-Greater N.Y., Inc. v Almonte, 65 AD3d 1155, 1157 [2d Dept {**67 Misc 3d at 366}2009]).

In Mauro v Choi, the Honorable Gerald Lebovits dismissed a petition which "intentionally tried to deceive respondents, DHCR, and this court" (11 Misc 3d 1070[A], 2006 NY Slip Op 50461[U], *6 [Civ Ct, NY County 2006]). Such an equitable consideration, it appears, must be taken, even in this Department. In Hughes v Lenox Hill Hosp. (226 AD2d 4, 18 [1st Dept 1996]), the Appellate Division stated, "Plaintiff has stated no basis why the notice served by defendant should be regarded as unreasonable or, alternatively, should be subject to strict construction as a matter of equity (see, e.g., MSG Pomp Corp. v Doe, 185 AD2d 798 [landlord's misrepresentation of ownership and rent-regulated status of apartment])." Thus, not all errors or misstatements in pleading are the same. Sometimes, equity favors dismissal, particularly if the tenant can demonstrate real prejudice or the court is unable to fully assess the matter before it when it is not provided the proper regulatory frameworks. Here, there has been no allegation of intentional misrepresentation or an intent to deceive the court or respondent. Consequently, equity favors amendment and for the proceeding to move forward on the merits.

Amendment is favored, absent "prejudice or surprise resulting directly from the delay" (Lindo v Brett, 149 AD3d 459, 463 [1st Dept 2017], citing McCaskey, Davies & Assoc. v New York City Health & Hosps. Corp., 59 NY2d 755, 757 [1983]). As such, the court grants petitioner's motion to amend the pleading to reflect the proper regulatory status. The court notes that respondent was able to obtain counsel and counsel quickly identified the defect in the petition. Additionally, as the subject apartment is denoted as "3-C" in a Bronx apartment building, it is likely the court would have identified the regulatory status of the apartment without difficulty (compare Lanclos and Davis, wherein the additional regulatory schemes could not be known by the court; see PCMH Crotona, L.P. v Taylor, 57 Misc 3d 1212[A], 2017 NY Slip Op 51401[U] [Civ Ct, Bronx County 2017] [dismissal for failure to plead the existence of an Office of Mental Health contract at the subject premises, which would have alerted the court to respondent's possible mental health concerns]).^[FN2]

In this same vein, respondent's motion for leave to amend her answer is granted. Petitioner has not opposed this branch{**67 Misc 3d at 367} of respondent's motion and, in any case, given that the court is permitting petitioner to amend its petition, respondent is entitled to an opportunity under CPLR 3025 (d) to serve and file an amended answer to that amended petition (see Pri Villa Ave. L.P. v Santiago, 62 Misc 3d 1206[A], 2019 NY Slip Op 50012[U] [Civ Ct, Bronx County 2019]).

Based on the foregoing, it is so ordered, respondent's motion seeking dismissal under CPLR 3211 (a) (7) is denied. Petitioner's motion seeking leave to amend the pleadings is granted. Respondent's amended answer is deemed served and filed.