Jones Living Trust v Burnell (2026 NY Slip Op 50201(U))

Jones Living Trust By: Carol-Ann Jones Caine, Trustee, Appellant,

against

Ms. Eunice Burnell, Also Known as Ms. Eunice Permell, Tenant,
Reva Thomas, Respondent, and "John Doe" and "Jane Doe," Undertenants.

Alter & Barbaro, Esqs. (Bernard Mitchell Alter of counsel), for appellant. DC 37 Legal Services (John Anthony Bart of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Agata E. Rumprecht-Behrens, J.), dated February 25, 2025. The order granted the branch of tenant Reva Thomas's motion seeking to dismiss the petition insofar as asserted against her in a holdover summary proceeding based upon a defective notice of petition.

ORDERED that the order is reversed, without costs, the branch of tenant Reva Thomas's motion seeking to dismiss the petition insofar as asserted against her based upon a defective notice of petition is denied, and the matter is remitted to the Civil Court to determine the remaining branches of the motion.

In this holdover proceeding, tenant Reva Thomas moved to dismiss the petition insofar as asserted against her on several grounds, including, as relevant on appeal, that the notice of petition did not match the mandatory form required by Uniform Rules for New York City Civil Court (22 NYCRR) § 208.42 (b). By order dated February 25, 2025, the Civil Court (Agata E. Rumprecht-Behrens, J.) granted the motion and dismissed the petition in its entirety on that ground, without considering the remaining branches of the motion.

In some instances, the failure to conform a notice of petition to a form made mandatory by statute or court rule may be treated as jurisdictional (see David A. Kaminsky & Assoc., PC v Brenner, 64 Misc 3d 129[A], 2019 NY Slip Op 51028[U] [App Term, 1st Dept 2019]; see generally Roth v State Univ. of NY, 61 AD3d 476 [2009], lv denied 13 NY3d 711 [2009]; Micro-Spy, Inc. v Small, 9 AD3d 122 [2004]; Wells v Mount Sinai Hosp. & Med. Ctr., 196 [*2]AD2d 749 [1993]). Here, however, the notice of petition that was used in this case was nearly identical to the form made mandatory by Uniform Rules for New York City Civil Court (22 NYCRR) § 208.42 (b), with the largest difference between the two involving formatting issues. The overall similarity of the forms indicates substantial compliance with "the spirit and intent of the sample notice" (Chalfonte Realty Corp v Streator, Inc, 142 Misc 2d 501, 503 [Civ Ct, NY County 1989]). The minor differences pertain to form, not substance, and, as such, under these circumstances, did not prejudice tenant's rights (see CPLR 2001).

Accordingly, the order is reversed, the branch of tenant Reva Thomas's motion seeking to dismiss the petition insofar as asserted against her based upon a defective notice of petition is denied, and the matter is remitted to the Civil Court to determine the remaining branches of the motion.