Recitation, as required by CPLR § 2219(a), of the papers considered in the review of petitioner's order to show cause to amend the petition pursuant to CPLR § 3025(b) and to permanently stay a portion of the court's December 6, 2023 Decision/Order, and petitioner's prior cross-motion for summary judgment (NYSCEF Docs. #27-51):

Upon the foregoing cited papers, the decision and order on petitioner's order to show cause and petitioner's prior cross-motion for summary judgment is as follows.

The full procedural history is detailed in this court's December 6, 2023 Decision/Order (see Loumat Realty Co., LLC v. Gilkarov, 81 Misc 3d 1213[A], 2023 NY Slip Op 51331[U] [Civ [*2]Ct, Queens County 2023]).^[FN1] Subsequent to the issuance of the December 6, 2023 Decision/Order, petitioner, through counsel, filed the instant order to show cause, which primarily seeks amendment of the petition to plead that the subject premises is subject to the Martin Act, General Business Law § 352-eeee, pursuant to CPLR § 3025(b). Respondents opposed the motion through counsel and the court heard argument on the motion on December 22, 2023. Decision was reserved upon the conclusion of the argument.

Petitioner seeks amendment of the petition pursuant to CPLR § 3025(b). Pursuant to CPLR § 3025(b), "[a] party may amend his or her pleading . . . at any time by leave of court or by stipulation of all parties. Leave shall be freely given upon such terms as may be just including granting of costs and continuances." (See also Faiella v. Tysens Park Apts., LLC, 110 AD3d 1028, 1029 [2d Dept 2013] ["Leave to amend a pleading should be freely given absent prejudice or surprise to the opposing party, unless the proposed amendment is palpably insufficient or patently devoid of merit."]; Nationstar Mtge., LLC v. Jean-Baptiste, 178 AD3d 883, 886 [2d Dept 2019]). Additionally, "'mere lateness is not a barrier' to amendment, absent prejudice." Cirillo v. Lang, 206 AD3d 611, 612 [2d Dept 2022] [quoting Edenwald Contr. Co. v. City of New York, 60 NY2d 957, 959 [1983]]. In its motion, petitioner now asserts that the subject premises is subject to the Martin Act since petitioner is the successor sponsor entity of the subject building, which underwent to a cooperative conversion pursuant to a residential non-eviction plan that became effective in 1989. While petitioner does not precisely explain why the allegation was not included in the original petition, it nonetheless argues that CPLR § 3025(b) permits amendment at this juncture. Respondents, via an attorney affirmation, argue that petitioner does not proffer an adequate excuse for failing to plead Martin Act coverage in the original petition, and assert that permitting amendment would be prejudicial to respondents, by depriving them of rights and defenses available under the Martin Act.

Upon due deliberation, the court finds that the relevant appellate case law supports petitioner's request to amend the petition to assert Martin Act coverage. In Paikoff v. Harris, 185 Misc 2d 372, 375-376 [App Term, 2d Dept, 2d & 11th Jud Dists 1999], the Appellate Term, Second Department specifically held, in an opinion holding that the Martin Act applied to "non-purchasing tenants," that a misstatement related to Martin Act coverage in the petition could be amended in the absence of prejudice. The principle that misstatements about regulatory status in summary eviction petitions are subject to amendment has also been endorsed by the Appellate Division, Second Department (see Villas of Forest Hills Co. v. Lumberger, 128 AD2d 701, 702 [2d Dept 1987]). Therefore, inasmuch as respondents' attorney's assertions of prejudice are conclusory, the court grants petitioner's motion to amend the petition. The amended petition (NYSCEF Doc. #57) shall be deemed served and filed.

While the court does not find that respondents have sufficiently demonstrated prejudice to deny amendment, the court will nonetheless permit respondents to interpose an amended answer, particularly since the allegation that the subject premises is subject to the Martin Act [*3]affects the "scope of [a] tenant's rights." Aero Mgt. v. Moghadasian, 74 Misc 3d 132[A], 2022 NY Slip Op 50154[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; see also MMB Apts., LLC v. Guerra, 45 Misc 3d 132[A], 2014 NY Slip Op 51662[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014] [Noting that, in a tenancy subject to the Martin Act, a tenant's failure to sign a lease renewal with a rent that is not unconscionable is curable pursuant to RPAPL § 753(4)]; Kew Gardens Hills Apt. Assoc., L.P. v. Jeffers, 2003 NY Slip Op 51132[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2003]).^[FN2] The amended answer shall be filed to NYSCEF no later than May 29, 2024.

The court also grants petitioner's request to permanently stay briefing on the Martin Act issue that was a component of the court's Decision/Order dated December 6, 2023. The issue has been rendered moot by petitioner's instant motion and this Decision/Order granting the motion. The court hereby denies petitioner's cross-motion for summary judgment (NYSCEF Docs. #27-47), as the original petition, upon which it was based, was defective insofar as it omitted reference to the subject apartment's Martin Act coverage (see Moghadasian, 2022 NY Slip Op 50154[U], *2; 1646 Union, LLC v. Simpson, 62 Misc 3d 142[A], 2019 NY Slip Op 50089[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019] [In a summary proceeding brought pursuant to Article 7 of the RPAPL, each of the elements of petitioner's cause of action must be established for relief to be granted.]). The denial is without prejudice to renewal, if appropriate, after an amended answer is filed or the May 29, 2024 deadline passes without an amended answer being filed. Any future motions in this proceeding shall be made by order to show cause.

The proceeding will be restored for trial in Part O, Room 202, on July 15, 2024 at 11:00 AM. This Decision/Order will be filed to NYSCEF.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.