In this commercial holdover proceeding the petitioner moves for summary judgment pursuant to CPLR §3212. Respondent interposed an answer and has filed papers in opposition to the motion. Petitioner commenced this holdover proceeding in September 2020 seeking to recover possession of the commercial premises located a 226 South 4th Avenue in Mount Vernon, New York (hereinafter “subject premises”). The petition states that “Respondents Gennie May Contracting and Matty Smallwood are the tenant of said premises who entered into possession thereof under Written rental agreement between Respondent-Tenant and Petitioner-Landlords (predecessor), which expired and continued therein on a month to month Oral Agreement under the terms of the Original Agreement and such month to month agreement was terminated on March 17, 2020. The 10 day notice to quit attached to the Petition, entitled Notice to Quit Property Intruded or Squatted Upon, dated March 6, 2020, states, in pertinent part, “that you have intruded into, squatted upon and occupy unlawfully said premises without permission of the undersigned or of any person entitled to the possession thereof; and that the occupancy thus commenced has continued without said permission.” The notice demands that respondent remove themselves from the premises on or before March 17, 2020. In support of the motion, the petitioner has submitted the affidavit of Daniel Amicucci, the managing member of the petitioner. Mr. Amicucci asserts in his affidavit that petitioner is the legal owner of the subject premises and that this is a holdover proceeding. Mr. Amicucci further asserts that at no time has the petitioner granted permission to respondent to occupy the premises nor has the petitioner ever entered into any verbal or written contractual or lease agreement with respondents. Mr. Amicucci also states that the respondents, unbeknownst to petitioner and without their authority or consent, moved their belongings into the subject premises and that petitioner has never received any payment in any form for the subject premises. Finally, Mr. Amicucci states that there has never been a landlord tenant relationship between the parties. A copy of the deed to the property indicating that petitioner is the owner of the subject premises is attached to petitioner’s motion papers as Exhibit “A”. A copy of the Notice of Petition and Petition are attached to the petitioner’s motion papers as Exhibit “B”. In opposition to the motion, respondents contend that petitioner has failed to demonstrate that it is entitled to summary judgment in the instant action as there remains a triable issue of fact. Specifically, respondent asserts that the allegations in the petition clearly state that respondent entered into possession of the subject premises under a written rental agreement and continued on as month to month tenants pursuant to an oral agreement after the written lease expired. Respondents further contend that, as such, the petitioner has alleged a landlord-tenant relationship in its petition which is contrary to the allegations in its moving papers and constitutes a triable issue of fact. Respondents further assert that since there was a landlord-tenant relationship the Notice to Quit was an improper and invalid predicate notice for the present summary proceeding. Respondent summarily requests that the petitioner’s motion be denied and that the action be dismissed. The Court notes that respondents failed to properly move for said relief. In reply to the respondents’ arguments petitioner acknowledges that the language in the petition referenced by respondents is contrary to petitioner’s contentions in its moving papers. Petitioner states that the sole reason for the inaccuracy was caused by human error in that it includes language from an unrelated matter which was deleted in the drafting of the petition in the instant action, and was inadvertently not saved and therefore, printed inaccurately. Petitioner further reiterates its position that there was never a landlord -tenant relationship between the parties and states that the Notice to Quit was a proper predicate notice since there was no landlord-tenant relationship. Finally, petitioner contends that respondents have continually failed to show any proof of any form of a contractual relationship with petitioner, either written or verbal and has failed to show proof of rental payments which would substantiate a relationship with petitioner. Based upon all the foregoing, petitioner asserts it is entitled to a summary judgment. As an initial matter, it must be noted that a summary proceeding is a special proceeding governed entirely by statue and it is well established that there must be strict compliance with the statutory requirements to give the court jurisdictissson. 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 the respondent may adequately frame a defense. Tompkins Park-St. Marks Associates v. Boz Boz II Enterprises, Ltd., 177 Misc 2d 949 (1998). Moreover, RPAPL §§741(2) and (4) obligate the petitioner commencing a summary proceeding to recover possession of real property to state in the petition the respondent’s interest in the premises and relationship to the petitioner with regard thereto, and the facts upon which the proceeding is based. See City of New York v. Rainbo’s Fish Mkt., LLC, 49 Misc 3d 704 (Civ Ct NY Cty 2015). With respect to petitioner’s instant motion, it is well settled that in order to obtain summary judgment, the movant must establish its cause of action sufficiently to warrant a court’s directing judgment in its favor as a matter of law. Gilbert Frank Corp. v. Federal Ins. Co., 70 NY2d 966 (1988); Zuckerman v. City of New York, 49 NY2d 557 (1980). A movant for summary judgment must demonstrate entitlement to judgment as a matter of law by tendering sufficient evidence to eliminate material issues of fact. Washington v. Community Mutual Savings Bank, 308 AD2d 444 (2nd Dept 2003). In the case at bar, the Court finds that plaintiff has failed to establish its cause of action sufficiently to warrant summary judgment in its favor. In the case at bar, there is clearly an issue as to the sufficiency of the petition upon which petitioner seeks a summary judgment. The petition in the present action asserts that respondents had a landlord tenant relationship with the respondents, initially pursuant to a written lease and then subsequently, pursuant to an oral month to month agreement. The petition is verified by a member of petitioner’s LLC and said verification states that the deponent read the petition and that its contents are true. Regardless of the fact that petitioner asserts in its papers that said allegations are a mere office error, those allegations were verified as true by petitioner’s member. Moreover, petitioner simply requests that the Court disregard what is alleged in the petition and grant summary judgment based upon the completely contradictory allegations in its moving papers. At no time has petitioner sought to amend its petition. The contradictory claims in the petition regarding the respondent’s interest in the premises and its relationship thereto provide an insufficient basis upon which a summary judgment may be granted. See City of New York v. Rainbo’s Fish Mkt., LLC, supra. Based upon the foregoing, plaintiff’s motion for summary judgment is denied. This constitutes the Decision and Order of this Court. The Court considered the following papers on this motion: Petitioner’s Notice of Motion for Summary Judgment, dated January 4, 2021, Exhibits A-C, Affidavit in Support of Notice of Motion for Summary Judgment; Affirmation in Opposition, dated May 19, 2021; Affirmation in Reply to Opposition dated June 4, 2021. Dated: June 15, 2021
