Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion:

Papers Numbered

Order to show Cause/ Notice of Motion and

Affidavits /Affirmations annexed 1

Answering Affidavits/ Affirmations 2

Reply Affidavits/ Affirmations 3

Memoranda of Law 4

Other 5

This holdover proceeding is predicated upon a 90-day termination notice. Petitioner seeks to recover possession of the First Floor Rear Apartment. The petition provides that the property is a two-family house. Respondents appeared by counsel, the Brooklyn Legal Services Corporation A. Respondents filed an Answer and a Notice of Motion for dismissal, or in the alternative, for permission to conduct discovery.

Respondents assert that this is a matter arising from a familial dispute which should be adjudicated in Family Court and/or Supreme Court. Respondent Heha Fnu asserts that she is the legal spouse of Jatinder Singh. Jatinder Singh had a 99% interest in the subject property when she moved into the subject premises. Respondent states that she comes from a traditional Sikh family. Her marriage was arranged in India. In July 2021, after the marriage, Respondent moved to New York to reside with Jatinder Singh in the subject premises, as their marital home. In December 2022 Jatinder Singh transferred part of his intertest to his brother, the Petitioner. Respondent Fnu asserts that Jatinder Singh, now has a 50% interest in the property as Tenants in Common with the Petitioner.

Respondent Fnu further states that she has made substantial contributions to the marital home. Respondent states that she is not a tenant of the Petitioner and that she has never had a landlord-tenant relationship with Petitioner. Respondent Kaur is the mother of Respondent Fnu, and she was invited to come to the subject premises to help her daughter during her pregnancy. Kaur does not have a landlord/tenant relationship with Singh.

Petitioner disagrees with Respondents' statements. Petitioner argues that Respondents are tenants and that he may maintain this proceeding. Petitioner alleges that Respondents entered into possession "under an oral month to month lease agreement."

The statements, the documents, and the deeds filed to New York City ACRIS show family transactions. The transactions are without consideration, which would indicate that there may be other understandings between the brothers, the Petitioner and Respondent's spouse. The most current recorded deed shows that in September 2023 Respondent's spouse, Jatinder Singh, transferred his entire 50% interest to Petitioner, sans any consideration. Prior to September 2023, Petitioner held a 50% interest with Respondent's spouse. In January 2020 when the subject property was acquired by Jatinder Singh, he held 99% in the property and Petitioner held 1%.

The transfers of the deed to property are not the question before this Court. The Court does not opine as to the propriety of these transactions as they may reflect complex familial arrangements among and between family members. The primary issue before this Court is whether Petitioner has established a landlord/tenant relationship with any of the Respondents.

Pursuant to RPAPL §741, the petition fails to describe the facts upon which the proceeding is based. There are no indicia that Respondent has ever been the tenant of Petitioner. Respondent's unrefuted statements support a finding that she has not been and is not a tenant of Petitioner. See, Abdulla v. Porras, 2023 NY Slip Op 30754(U) [Civ Ct Queens Co. 2023]. There is no dispute that the subject property has been occupied by family members and the occupancy alone does not create a tenancy. Petitioner does not explain when and how Respondents became a tenant or entered into a landlord/tenant relationship with him.

While there is no general "familial exception" to the filing a summary proceeding, the termination of a tenancy must be based upon the existence of a landlord/tenant relationship. Here, there is no evidence of a tenancy or rental agreement as stated in the predicate notice. See cf., Persain v. Persane, 77 Misc 3d 992 [Civ Ct Queens Co. 2022]; Readick v. Green, 73 Misc 3d 132[A], 2021 NY Slip Op 50973(U) [App Term 1st Dept 2021]. Absent evidence of a landlord/tenant relationship, such as the payment of rent to the Petitioner, the predicate notice and the petition fail to state facts upon which this summary proceeding can move forward and requires dismissal.

The predicate notice cannot be amended, and it states that there is a lease. Here, the predicate notice was issued pursuant to RPAPL §711; it is legally inadequate as there is no evidence of a landlord/tenant relationship between these family members. The Court does not have jurisdiction to hear this case without a proper predicate notice. See, Chinatown Apartments, Inc. v. Chu Cho Lam, 51 NY2d 786 [1980].]

Accordingly, respondent's motion to dismiss is granted.

It is ORDERED that the proceeding is dismissed without prejudice.

This Decision/Order will be filed to NYSCEF.

This constitutes the Decision/Order of the Court.