Petitioner commenced this holdover proceeding in December 2020 seeking to recover the residential premises located at 47 N. Bleeker Street, Apt. 3R, Mount Vernon, New York 10550 (“subject premises”) following the alleged expiration of the respondent’s tenancy. Respondent Philip Strachin now moves to dismiss this summary proceeding on the grounds that the petition is defective for failure to properly plead a cause of action. Respondent further moves for summary judgment for retaliatory eviction and an order awarding respondent legal fees, both pursuant to RPL §223-b. Petitioner opposes the motion. The holdover petition served on the respondent in this proceeding states that respondent is the tenant of the subject premises and that he entered into possession of the premises under a written lease agreement which expired after which the tenancy continued therein on a month to month oral agreement under the terms of the original agreement. The petition also alleges that said month to month agreement was terminated on May 31, 2020. The petition further asserts that notices were properly served on respondent via regular and certified mail and are attached to the petition. The petition further states that the premises are subject to the ETPA. The notice attached to the petition, dated February 20, 2020, states, in pertinent part, “PLEASE TAKE NOTICE, there (sic) undersigned Landlord of the premises known as and by, 47 N. Bleeker Street, 3R, Mt. Vernon, NY 10550, occupied by you, elects to terminate your tenancy as of May 31, 2020. This is a Ninety (90) Day Notice sent to you pursuant to the Real Property Laws of the State of New York. If you fail to vacate on or before said date, you will be considered a holdover tenant and the necessary eviction proceedings will be commenced against you and all other occupants by the undersigned.” Respondent filed an answer in which he asserted petitioner’s failure to state a cause of action as a defense. Respondent also asserted a defense of retaliation by the landlord pursuant to RPL §223-b(4) alleging that the commencement of the instant action was in retaliation for respondent filing a Service Reduction Complaint and an Overcharge Complaint with the DHCR, both filed on March 15, 2020. Respondent’s answer also contains a counterclaim for legal fees pursuant to RPL §223-b(3). In his motion to dismiss, respondent contends that petitioner has failed to state a cause of action in its petition because it does not state any permissible grounds for maintaining a holdover action against respondent as set forth in ETPA §2504.21 Petitioner alleges that the subject premises is subject to the ETPA, however, it only asserts that its ground for commencing the proceeding is that the tenancy, which initially commenced pursuant to a written agreement and subsequently converted into a month to month tenancy, expired on May 31, 2020. Moreover, the Ninety Day Notice, attached to the petition and incorporated therein, merely states that the landlord elected to terminate respondent’s tenancy as of May 30, 2020. Respondent argues that a review of the petition demonstrates that it is defective because it fails to allege any grounds upon which the termination of tenancy is based as required by the ETPA regulations. Respondent contends that the petition is defective because it fails to set forth any specific facts to establish the grounds for the landlord to recover possession of respondent’s apartment and that a mere expiration of a lease agreement, as alleged in the holdover petition, is not grounds for termination of a rent stabilized tenancy. As such, respondent asserts petitioner has failed to state a cause of action. Respondent also contends that he is entitled to summary judgment on his defense of retaliation by petitioner and that he should be awarded legal fees pursuant to RPL 223-b(3) & (4) since the petitioner commenced the instant action within one year of him filing his complaints with the DHCR. In support of the motion to dismiss, respondent affirms in his affidavit that he has resided in the subject ETPA premises since December 31, 2013. He states that the subject premises is located in an eight unit building that is registered with the DHCR and is subject to the ETPA. Respondent asserts that as a result of warranty of habitability conditions in his apartment, on March 15, 2020 he filed a Service Reduction Complaint with the DHCR Respondent also asserts that petitioner has consistently attempted to raise his rent, however, none of the petitioner’s lease renewal attempts were tendered on the DCHR approved form nor were the amount of rent increases within the permissible percentage guidelines. Respondent contends that petitioner has never offered him a proper ETPA lease renewal and as a result of petitioner’s attempts to improperly raise his rent, on March 15, 2020 respondent also filed an Overcharge Complaint with the DHCR. In opposition to the motion, petitioner summarily contends that respondent’s claim of retaliation is without merit since the notice to terminate respondent’s tenancy was sent on February 20, 2020, which was before the complaints to the DHCR were filed by respondent. Petitioner further contends that, contrary to respondent’s contention, respondent’s filing of the complaints with the DHCR were done in retaliation to respondent being issued the notice of termination. Moreover, petitioner further states that the petition in the instant matter was not filed until November 23, 20202 solely as a result of the COVID restrictions that prevented filings in the preceding months. The Court notes that petitioner failed to address that portion of respondent’s motion to dismiss based upon its alleged failure to state a cause of action for the termination of an ETPA tenancy in its petition. ETPA §2504.1(a) provides that a tenant cannot be evicted except on one or more grounds specified in ETPA §2504.2. ETPA §2504.2 provides that after service and filing of the requisite notice an action to remove a tenant may be maintained where: the tenant is violating a substantial obligation of the tenancy other than the obligation to surrender possession; the tenant is committing a nuisance; the occupancy by he tenant is illegal under the law; the tenant is using or permitting the premises to be used for illegal purposes; the tenant has unreasonably refused access to the premises for required maintenance and repairs by the landlord; the tenant has failed or refused following the required notice ro renew an expiring lease in a manner prescribed under the ETPA or an illegal sublet of the premises. ETPA §2504.3(a) provides no eviction proceeding can be commenced against an ETPA tenant unless the landlord provides written notice to the tenant upon one of the grounds permitted in ETPA §2504.2 (9 NYCRR §§2504.3(a), 2504.2)) A summary proceeding is a special proceeding governed entirely by statute and it is well established that there must be strict compliance with the statutory requirements to give the court jurisdiction (See Goldman Bros. v. Forester, 62 Misc 2d 812 [NY Civ. Ct. 1970]). A petition in a summary proceeding is sufficient if it sets forth sufficient facts so that respondent may adequately frame a defense (Tompkins Park-St. Marks Associates v. Boz Boz II Enterprises, Ltd., 177 Misc 2d 949 [1998]. RPAPL §741 provides that a petition must state, inter alia, the interest a tenant has in the premises and the facts upon which a proceeding is based. When the tenancy is subject to a specific rent regulation, the petition must state the tenant’s regulatory status because this status will determine the scope of the tenant’s rights in the summary proceeding (Cintron v. Pandis, 34 Misc 3d 152 (A) [2d Dept. 2012]). In this case, the petition merely states that respondent entered into possession of the premises under a written lease agreement which expired after which the tenancy continued therein on a month to month oral agreement under the terms of the original agreement, that said month to month agreement was terminated on May 31, 2020 and that the subject premises is subject to the ETPA. Since the premises is subject to the ETPA, petitioner was required to terminate the tenancy in accordance with the ETPA regulations in order to evict the respondent from the premises. A mere expiration of the lease agreement, as alleged in the petition, is not grounds for termination of an ETPA tenancy. See 9 NYCRR §2504.2. Moreover, pursuant to ETPA regulations (9 NYCRR §2504.3 (b)), prior to commencing a holdover summary proceeding, petitioner must serve a notice to terminate which must set forth, inter alia, the grounds for termination and the facts necessary to establish the existence of such grounds. However, in commencing the instant action, as delineated above, petitioner did not allege in its petition any of the grounds upon which an ETPA tenancy can be terminated as the grounds for the termination of respondent’s tenancy. Moreover, the notice to terminate, which was incorporated into the petition, merely states “PLEASE TAKE NOTICE, there (sic) undersigned Landlord of the premises known as and by, 47 N. Bleeker Street, 3R Mt. Vernon, NY 10550, occupied by you, elects to terminate your tenancy as of May 31, 2020. This is a Ninety (90) Day Notice sent to you pursuant to the Real Property Laws of the State of New York. If you fail to vacate on or before said date, you will be considered a holdover tenant and the necessary eviction proceedings will be commenced against you and all other occupants by the undersigned.” The Court notes that there is also no allegation in the petition or termination notice attached thereto and incorporated therein, that petitioner served a renewal lease and that respondent refused to sign a renewal lease, thereby creating a month-to-month tenancy (Acevedo v. Layton, 131 Misc 2d 406 [2d Dept. 1985]; citing Bianchi v. Savage, 83 Misc 2d 1007 [City Ct. White Plains 1975]). Furthermore, petitioner also failed to serve a notice to cure as required by 9 NYCRR §2504.1(d) prior to seeking to terminate an ETPA tenancy. Petitioner has an obligation to serve a proper predicate notice and a “defect in a predicate notice cannot be cured by papers submitted in opposition to the motion to dismiss” (Dowarp Realty Co. v. Acevedo, NYLJ, Apr. 3, 1990 at 26, c 2 [App Term 1st Dept.], 1990 NY App. Div. LEXIS 16865). The failure to serve the required notices on the tenant with respect to termination of the tenancy and to allege same in the petition, renders the petition jurisdictionally defective under the ETPA regulations (9 NYCRR §2504.3 and RPAPL §741). Based upon the foregoing, the Court finds that petitioner failed to serve a proper notice of termination and has failed to state a cause of action pursuant to RPAPL §741 in the instant matter. For the reason stated herein, the motion to dismiss is granted and the petition is dismissed. With respect to respondent’s motion for summary judgment on his affirmative defense of retaliatory eviction, given the Court’s dismissal of the petition, respondent’s motion is rendered moot. Lastly, respondent’s counterclaim for attorney’s fees pursuant to RPL §223-b(3) is dismissed. RPL §223-b(3) specifically provides that a landlord shall be subject to a civil action if the landlord is found to have violated the provisions of RPL §223-b. The Court finds that respondent has failed to establish that petitioner’s actions were retaliatory. RPL §223b(5) provides for a rebuttable presumption that a landlord is acting in retaliation if the tenant establishes that the landlord served a notice to quit, or institutes an action or proceeding to recover possession, within one year after a good faith complaint was made. In the case at bar, the notice to terminate issued by petitioner upon which the instant action is based, although defective, was dated February 20, 2020 which was before respondent filed his two complaints with the DHCR on March 15, 2020. Moreover, respondent failed to allege any facts that petitioner’s notice to terminate was in retaliation to respondent asserting his rights with regard to warranty of habitability claims under RPL §235(b) or his claims regarding overcharges under the ETPA regulations. See Barr v. Huggins, 41 Misc 3d 605 (Civ Ct Bronx Cty 2013). Respondent’s affidavit is devoid of any specific factual allegations regarding the alleged warranty of habitability claims or rent overcharges, other than those generally referencing the complaints filed with the DHCR. As such, the Court finds that petitioner’s initiating action to terminate the tenancy, that being the service of the notice to terminate, predated the respondent’s complaints and the statutory presumption of retaliation does not apply. Accordingly, the respondent failed to establish petitioner’s actions were in retaliation for respondent’s filed complaints and therefore, is not entitled to attorney’s fees under RPL §223b(3). This constitutes the Decision and Order of this Court. The Court considered the following papers on this motion: Notice of Motion to Dismiss and Motion for Summary Judgment for Retaliatory Eviction and Legal Fees Pursuant to RPL §223-b and RPL §223-b(3), dated February 21, 2021, Affirmation in Support, Affidavit in Support, Exhibits A-F; Amended Affirmation in Opposition to Respondents Motion to Dismiss and for Summary Judgment, dated June 4, 2021. Dated: July 13, 2021
