Appeal from an order of the Justice Court of the Village of Dobbs Ferry, Westchester County (Steven P. Grant, J.), dated February 29, 2008. The order denied tenant's motion to dismiss the petition.

Order reversed without costs and tenant's motion to dismiss the petition granted.

Landlord commenced this holdover summary proceeding, alleging that tenant continued to hold over after landlord had terminated her month-to-month tenancy. Tenant moved to dismiss the petition, arguing, inter alia, that her tenancy was protected under Article II of the Private Housing Finance Law, popularly known as the "Mitchell-Lama Law," and that landlord failed to state that fact in the petition. In opposition to tenant's motion, landlord, inter alia, submitted documents that establish that the subject premises are subject to the Mitchell-Lama Law. The Justice Court denied tenant's motion.

In the circumstances presented, it was incumbent upon landlord to allege in the petition that the tenancy was subject to the Mitchell-Lama regulations and to set forth why, in landlord's view, landlord was not required to obtain a certificate of no objection from the Division of Housing and Community Renewal (see 9 NYCRR 1727-5.3) so that tenant and the court would be adequately apprised of the basis of landlord's claim (see RPAPL 741; Todman v Thompson, 2003 NY Slip Op 51195[U] [App Term, 9th & 10th Jud Dists 2003]). As landlord failed to do so and did not seek leave to amend the petition, tenant's motion to dismiss the petition should have been granted.

Rudolph, P.J., Tanenbaum and Nicolai, JJ., concur. [*2]
Decision Date: June 29, 2009