Appeal from an order of the Civil Court of the City of New York, Kings County (Loren Baily-Schiffman, J.), dated September 7, 2007. The order denied tenant's motion to dismiss the petition and granted landlord's cross motion to amend the petition.

Order reversed without costs, tenant's motion to dismiss the petition granted, and landlord's cross motion to amend the petition denied.

In this commercial nonpayment proceeding, landlord alleged in its petition that tenant was in possession of premises located at 846 St. John's Place in Brooklyn pursuant to a written lease agreement. Landlord sought rent, as well as real estate taxes and hazard insurance, which it stated were deemed additional rent in that agreement.

In a motion to dismiss the petition, tenant argued, among other things, that the petition was fatally defective in that it stated that tenant was in possession of the subject premises pursuant to a written lease. In fact, tenant asserted, the lease had expired long ago, and tenant had remained in possession as a month-to-month tenant. Tenant further asserted, in essence, that it and landlord had orally agreed, after the expiration of the written lease, that tenant would not be responsible for any taxes or insurance, and that landlord had never previously sought to collect such payments.

Landlord subsequently cross-moved to amend its petition. In its cross motion, landlord did not submit a proposed amended pleading; instead, landlord only sought to alter the second [*2]paragraph of its petition to read:
"Respondent LOCAL DEVELOPMENT [CORP.] OF CROWN HEIGHTS, is the tenant in possession of said premises, originally entering possession pursuant to a written rental agreement and remaining as a month to month tenant made heretofore wherein Respondent promised to pay landlord a base rent of $1625.00 each month in advance on the 1st day of each month."

Landlord did not propose amending any other portion of the petition. However, in support of landlord's cross motion, landlord stated that the original written rental agreement between the parties did not relate to the premises it sought to recover (846 St. John's Place), but rather to premises located at 776 Nostrand Avenue. After the agreement for 776 Nostrand Avenue had expired, tenant had moved to the subject premises. The parties had drafted a written agreement for the subject premises, but never executed that agreement. While insisting that tenant's claim of an oral modification had to be rejected based on a lease provision barring oral modifications, landlord nevertheless asserted that the lease had been orally modified to apply to the new premises.

In opposition to landlord's cross motion and in further support of its motion to dismiss, tenant argued, among other things, that landlord's proposed claim was entirely different from that asserted in the original petition, and that landlord's own papers belied its claim in the petition and in the proposed amendment that tenant had entered into possession of the subject premises pursuant to a written lease.

Under RPAPL 741, a petition must state, among other things, the respondent's interest in the premises and the facts upon which the proceeding is based. While the prevailing rule, at least in this Department, is that a "petition which may fail to state facts sufficient to constitute a cause of action and contains other pleading infirmities is capable of correction by amendment" (Birchwood Towers #2 Assoc. v Schwartz, 98 AD2d 699, 700 [2d Dept 1983] [citation and internal quotation marks omitted]; see e.g. Villas of Forest Hills v Lumberger, 128 AD2d 701 [2d Dept 1987]; Reckson Operating Partnership, L.P. v LJC Corp., 17 Misc 3d 138[A], 2007 NY Slip Op 52335[U] [App Term, 9th & 10th Jud Dists 2007]; 17th Holding v Rivera, 195 Misc 2d 531 [App Term, 2d & 11th Jud Dists 2002]), a petition which contains fundamental misstatements and omissions which deprive the court and the respondent of adequate notice of the transactions intended to be proved (see CPLR 3013) is subject to dismissal upon motion (CPLR 404; cf. 546 W. 156th St. HDFC v Smalls, 43 AD3d 7, 11 [1st Dept 2007] ["adequacy of notice in a landlord-tenant proceeding is governed by a standard of reasonableness under the attendant circumstances"]). In the instant matter, landlord's initial petition asserted that tenant was in possession of the subject premises pursuant to a written agreement and owed the rent demanded pursuant to that agreement. It made no mention of the expiration of that agreement, of an ensuing alleged month-to-month tenancy, of the terms of said month-to-month tenancy, or that the terms of said tenancy allegedly had been carried over into a new premises. Thus, the notice provided by the petition was not adequate under the attendant circumstances (see 43 AD3d at 11). Assuming that these fundamental defects were subject to correction, they were not adequately corrected by landlord's proposed amendment, which continued to fundamentally [*3]misstate the agreement pursuant to which tenant occupied the subject premises and to omit critical facts regarding landlord's claim. The petition, even as amended, thus failed to properly set forth tenant's interest in the premises and the facts upon which the proceeding was based (RPAPL 741 [2], [4]). Accordingly, landlord's cross motion to amend the petition should have been denied, and tenant's motion to dismiss granted.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: March 16, 2009