Recitation, as required by CPLR 2219 (a), of the papers considered in review of this motion

This is a holdover summary proceeding brought against respondent, Jose Bencosme ("respondent"), the former superintendent of the subject building after his termination from employment. Respondent retained counsel and has moved to dismiss the proceeding pursuant to CPLR 3211 (a) (1) and CPLR 3211 (a) (7), or, in the alternative, for summary judgment pursuant to CPLR 3212. (NYSCEF Doc No. 9, motion [sequence 1]; NYSCEF Doc No. 8, respondent's answer, first affirmative defense ¶¶ 11-14.) Petitioner has cross-moved for summary judgment. (NYSCEF Doc No. 11, motion [sequence 2].)

Respondent states that he was hired by petitioner in 2011 and was assigned to be the superintendent of the subject building. (NYSCEF Doc No. 9 at 7, Bencosme affidavit ¶ 6.) He first moved into the building pursuant to a lease for apartment B6. (Id. ¶¶ 8-9.) In 2013 or 2014, he relocated to a newly created unit in the basement of the subject building. (Id. ¶ 9.) There, he paid $300 a month in "rent" for two or three years. (Id. ¶ 10.) In 2019, petitioner requested that he also perform superintendent duties at another building with the same managing agent.^[FN1] Respondent further avers that he had a disagreement with petitioner because he "was having trouble keeping up with all the jobs at both buildings." (Id. ¶ 12.) He asked to be allowed to work only at 2515 7th Avenue and was told that this was not possible. He continued working in both buildings until March 2022. (Id.)

Respondent argues that the petition contains "fundamental misstatements and omissions" which violate the requirements in RPAPL 741. (NYSCEF Doc No. 9, respondent's attorney's affirmation at 15.) First, respondent argues that the petition misrepresents respondent's interest in the premises and his relationship to petitioner with regard thereto. "[T]he fact that Mr. Bencosme entered into possession under a written lease, and paid rent to the Petitioner, make any statements that he entered into occupancy as purely an employee patently false," requiring dismissal of the petition. (NYSCEF Doc No. 9, respondent's memorandum of law, at 15.) Respondent claims that he and petitioner had a landlord tenant relationship because he signed a lease with petitioner when he moved into apartment B6 in the subject building, prior to relocating to the basement where he continued to pay rent. (Id. at 14.) The lease attached at respondent's exhibit A is for a one-year term, from July 1, 2011 through June 30, 2012, with a monthly rent of $893.00. (Id. at 18-24.) Thus, respondent argues that he had a dual relationship of employer-employee and landlord-tenant with petitioner and remains a rent-stabilized tenant. Respondent also directs the court's attention to the fact that the petition contains no mention of the regulatory status of the premises whatsoever. (Id. at 13.)

Petitioner does not specifically oppose respondent's motion for summary judgment but, rather, cross-moves for summary judgment pursuant to CPLR 3212 (b) and CPLR 409 (b) and [*2]disputes every fact averred by respondent. Petitioner states that respondent has always been only the superintendent and never a tenant, let alone a tenant of apartment B6. Petitioner disavows the authenticity of the lease submitted by respondent. Petitioner avers that respondent never lived in apartment B6 and has never paid rent. (NYSCEF Doc No. 13, Sohayegh affidavit ¶¶ 8-9.) As support for this statement, petitioner submits a two-year rent stabilized renewal lease between petitioner and Kenyon Wilkerson which commenced February 1, 2011 and expired January 31, 2013 at a monthly rent of $839.40. (NYSCEF Doc No.19, Wilkerson renewal lease, petitioner's exhibit F.) Because this lease would overlap with respondent's lease, petitioner's attorney concludes, "[a]s such, Respondent has never executed a lease for the subject premises." (NYSCEF Doc No. 12, petitioner's attorney's affirmation ¶ 13.) Petitioner further argues that this is a superintendent holdover and superintendent apartments are exempt from rent regulation. However, the petitioner did not plead the regulatory status of the premises at all and does not move to amend the petition to allege that the premises are exempt from rent stabilization due to respondent's employment as the building's superintendent. Petitioner's attorney merely cites in his affirmation to the provision of the Rent Stabilization Code ("RSC") which exempts housing accommodations occupied by "employees to whom the space is provided as part or all of their compensation . . . for the purpose of rendering services in connection with the premises of which the housing accommodation is a part[.]" (RSC [9 NYCRR] § 2520.11 [m].)

Respondent opposes petitioner's motion on the basis that it is petitioner's burden to establish, prima facie, that possession of the premises sought to be recovered was obtained only as an incident to respondent's employment. Respondent objects to petitioner's conclusion that he could not have lived in apartment B6 because "[t]he existence of an earlier lease is not, in and of itself, incompatible with or a refutation of Respondent's evidence and affidavit testimony. As such, Petitioner has failed to refute that Mr. Bencosme was a rent-paying tenant of Unit B6." (NYSCEF Doc No. 21, respondent's attorney's reply affirmation at 4.)

Respondent's motion to dismiss pursuant to CPLR 3211 (a) (1) is untimely as it is filed post-answer and is therefore denied. (CPLR 3211 [e] ["Any objection or defense based upon a ground set forth in paragraphs one . . . of subdivision (a) of this rule is waived unless raised either by such motion or in the responsive pleading"].)

A court may employ the drastic remedy of summary judgment only where there is no doubt as to the absence of triable issues. (Andre v Pomeroy, 35 NY2d 361, 364 [1974].) On such a motion, a court's function is to find, rather than to decide, issues of fact. (Southbridge Towers, Inc. v Renda, 21 Misc 3d 1138[A], 2008 NY Slip Op 52418[U] [Civ Ct, NY County 2008], citing Epstein v Scally, 99 AD2d 713 [1st Dept 1984].) If an issue is "fairly debatable a motion for summary judgment must be denied." (Stone v Goodson, 8 NY2d 8, 12 [1960].)

The facts must be considered "in the light most favorable to the non-moving party." (Ortiz v Varsity Holdings, LLC, 18 NY3d 335, 339 [2011].) Only upon a prima facie showing of entitlement to summary judgment, does the burden shift to the non-moving party to establish material issues of fact requiring a trial. (Vega v Restani Const. Corp., 18 NY3d 499, 503 [2012] [internal citations and quotation marks omitted].) When determining a summary judgment motion, courts should not decide issues of credibility. (See Glick & Dolleck, Inc. v Tri-Pac [*3]Export Corp., 22 NY2d 439, 441 [1968].)

Viewing each motion for summary judgment separately in the light most favorable to the non-movant, the court finds that neither party has met their burden of proving, prima facie, that there are no triable issues of fact. The numerous facts in dispute and the credibility of the parties permeate their opposing motions. However, be that as it may, the court finds that the proceeding must be dismissed pursuant to CPLR 409 (b).

As here, "[t]hough a summary judgment motion may be made by one or both of the parties, under CPLR 409 (b), the court must also make summary determination on its own." (Sukaj Group LLC v Mallia, 66 Misc 3d 1223 [A], 2020 NY Slip Op 50218 [U] [Civ Ct, Bronx County 2020], citing New 110 Cipriani Units LLC v Bd. of Mgrs. of 110 E. 42nd St. Condominium, 166 AD3d 550 [1st Dept 2018].) CPLR 409 (b) requires the court to "make a summary determination upon the pleadings, papers and admissions to the extent that no triable issues of fact are raised. The court may make any orders permitted on a motion for summary judgment." A court may grant summary judgment and dismiss a proceeding even on grounds not raised by the parties. (Id.; 1646 Union, LLC v Simpson, 62 Misc 3d 142 [A], 2019 NY Slip Op 50089 [U] [App Term, 2d Dept 2019] [dismissing holdover proceeding on appeal pursuant to CLPR 409 [b] on grounds not raised by tenant].)

CPLR 3211 (a) (7) states in part that "[a] party may move for judgment dismissing one or more causes of action asserted against him on the ground that: the pleading fails to state a cause of action." "Because a summary proceeding is a statutory proceeding . . . relief can be granted to a petitioner only where all the elements of the petitioner's cause of action have been made out . . . ." (Id. *3, citing Matter of Blackgold Realty Corp. v Milne, 69 NY2d, 719, 721 [1987].) Dismissal for failure to state a cause of action can eventuate at any time, even if the objections are not raised in the answer. (M & E 73-75, LLC v. 57 Fusion LLC, 189 AD3d 1, 5 [1st Dept 2020].)

The elements of a cause of action in a summary proceeding must be pleaded pursuant to RPAPL 741. RPAPL 741 states that "[e]very petition shall:

1. State the interest of the petitioner in the premises from which removal is sought.

2. State the respondent's interest in the premises and his relationship topetitioner with regard thereto.

3. Describe the premises from which removal is sought.

4. State the facts upon which the special proceeding is based.

In the First Department, MSG Pomp Corp. v Doe, 185 AD2d 798 [1st Dept 1992] remains good law, mandating strict compliance with the statutory pleading requirements under RPAPL 741, including an allegation as to whether the premises are subject to rent regulation. (Siu Yat Chau v Marquez, 58 Misc 3d 1226 [A], 97 NYS3d 57 [Civ Ct, Bronx County 2018]; [*4]PCMH Crotona, L.P. v Taylor, 57 Misc 3d 1211 [A], 2017 NY Slip Op 51401 [U] [Civ Ct, Bronx County 2017]). In cases that have survived motions to dismiss for failure to state a cause of action, the petitioners either moved or cross-moved to amend the petitions to address a potential defect in the manner in which the rent regulatory status was pleaded. (See Coalition Houses L.P. v Bonano, 12 Misc 3d 146 [A], 2006 NY Slip Op 51516 [U] [App Term, 1st Dept 2006] [absent prejudice, no abuse in allowing amendment of misstatement in petition].) Petitioner has not moved to amend the petition; however, unlike here, even when amendment is allowed, it is where the regulations governing the premises provide the tenant with "no substantive rights." (See e.g. OLR ECW LP v Meyers, 59 Misc 3d 650, 72 NYS3d 780 [Civ Ct, Bronx County 2018].)

Even in the Second Department, which does not follow MSG Pomp Corp., the Appellate Division held in Villas of Forest Hills Co. v Lumberger, 128 AD2d 701, 702 [2d Dept 1987] that "[a]lthough the failure to make the required allegation will not deprive the hearing court of jurisdiction of the matter since the defective petition may be corrected by amendment . . . the need to plead rent regulatory status and compliance with the appropriate statutes and codes and to actually be in compliance therewith is necessary for a court to order the requested relief . . . ." "Fundamental misstatements and omissions" which are "not reasonable under the circumstances" will lead to dismissal of the petition. (Jeffco Mgt. Corp. v Local Dev. Corp. of Crown Heights, 22 Misc 3d 141 [A], 2009 NY Slip Op 50455 [U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009] ["[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 [] is subject to dismissal upon motion"]; Cintron v Pandis, 34 Misc 3d 152 [A], 2012 NY Slip Op 50309 [U] [App Term, 2d Dept, 9th & 10th Jud Dists 2012], citing Jeffco Mgt. Corp. [dismissing petition bereft of allegations regarding tenant's interests and potential rights in subject premises]).

Implicit in the requirement that the regulatory status be fully and properly pleaded, is that it must be pleaded in the first instance. Indeed, the permutations of every cause of action and defense pleaded in housing court are reliant on the regulatory status of the premises or lack thereof. The facts that the building is rent stabilized and that respondent provides services to "the premises of which [his] housing accommodation is a part[]" provide respondent with potential "substantive rights." (RSC 2520.11 [m].)

Here, the fundamental omission of any statement regarding regulatory status deprives respondent and this court of critical information regarding the regulatory status of the building in which he provides services and in which he lives. Those facts, if pleaded, would "provide[] the tenant with certain potential defenses" without which the proceeding cannot be properly adjudicated. (See Volunteers of America—Greater NY, Inc. v Almonte, 65 AD3d 1157 [2d Dept 2009] [dismissing a petition finding that partial pleading of regulatory status was inadequate where the existence of a contract with the city which was not pleaded affected the tenant's rights].)

Petitioner's submissions are inadequate to rehabilitate the fatally defective petition. While the court may consider affidavits submitted in opposition to a claim that a cause of action is not properly pleaded to preserve an otherwise "inartfully pleaded" complaint, Rovello v [*5]Orofino Realty Co., 40 NY2d 633, 635 (1976), citing to Raimondi v Fedeli, 30 AD2d 802 (1st Dept 1968), petitioner's affidavit makes no mention of the regulatory status of the building. (NYSCEF Doc No. 13, Sohayegh affidavit.) Petitioner's attorney cites to the provision of the RSC exempting superintendents from the protections of rent stabilization, but without specifically stating whether or not the premises is subject to rent stabilization (NYSCEF Doc No. 12, affirmation ¶ 25.)

Accordingly, for the foregoing reasons, it is

ORDERED that respondent's motion for summary judgment is DENIED; and it is further

ORDERED that petitioner's motion for summary judgment is DENIED; and it is further

ORDERED that the petition is dismissed without prejudice pursuant to CPLR 409 (b).

This constitutes the decision and order of this court.