As required by CPLR § 2219(a), the following is a recitation of the papers considered in the review of motion sequence 1 and sequences 2.

For the reasons stated below the court grants Respondent's motion sequence 1 and denies Petitioner's motion sequence 2. The proceeding is therefore dismissed without prejudice.

This is a summary nonpayment proceeding concerning an apartment that Petitioner alleged to be market rate and not subject to any other regulation or subsidy.

Respondent retained counsel and moved for a summary disposition alleging that the apartment is rent-stabilized and that Respondent receives Section 8 administered by HPD.

Petitioner cross-moved to amend the petition to allege that the apartment is rent-stabilized and that Respondent receives HPD Section 8. Respondent has filed a reply. The court now considers the motion and cross-motion.

Petitioner made at least two errors in pleading this matter and may have also served the wrong division within HPD's various units.

Each one of these errors on its own might not be fatal to Petitioner's case and could, plausibly, be corrected by amendment. However, when viewed cumulatively the errors raise concerns that the court cannot overlook.

Naturally, amendments should be freely granted "unless the proposed amendment (1) would unfairly prejudice or surprise the opposing party, or (2) is palpably insufficient or patently devoid of merit" (Edwards v 1234 Pac. Mgt., LLC, 139 AD3d 658, 659 [2d Dept 2016], see also, Otis Elevator Co. v 1166 Ave. of the Americas Condominium, 166 AD2d 307 [1st Dept 1990]).

Even misstatements of the rent-regulated status can be corrected by motion unless there is a showing of prejudice (Paikoff v Harris, 185 Misc 2d 372, 376 [App Term, 2d Dept 1999]).

Looking at the matter in the light of these cases, one might conclude that Petitioner's motion to amend would be granted and Respondent's motion would be denied. However, on closer analysis a different picture emerges. This decision reviews each error in turn.

a. Petitioner failed to plead the apartment regulatory status.

As noted above, petitioners may correct misstatements as to regulatory status by amendment to the petition. Under certain circumstances, the amendment to reflect the proper rent-stabilized status can be done orally and even on appeal (17th Holding LLC v Rivera, 195 Misc 2d 531, 532 [App Term, 2d Dept 2002]).

However, not all errors are created equal. Petitioner's failure to plead the apartment's regulatory status in this instance is qualitatively different from other mistakes, such as the name of a petitioner's managing agent.

In this case, Petitioner initially pleaded that the apartment is not regulated because it is "within a building containing less than six units". The court takes judicial notice of HPD's website pursuant to MDL § 328(3). HPD's website lists this building as having three units.

Petitioner now moves to amend the petition to reflect that the apartment is rent-stabilized because Petitioner receives 421-a tax credits. What makes the error qualitatively different is that it is not readily detectable by the court. The court reviews pleadings with pro se tenants and asks questions when conferencing cases and allocuting stipulations. Since buildings built before 1974 with six or more apartments are presumed to have rent-stabilized units, the fundamental question often comes down to how many units are in the building.

Here the petition pleads that the apartment is unregulated because there are three units in the building. A cursory review of HPD's website confirms that the subject building contains just [*2]three legal units, which would lead the court to believe that the apartment was not stabilized. While it is possible to check the NYC Department of Finance's website to see which buildings enjoy 421-a tax benefits, the volume of cases heard by the housing court only permits a review of the most salient facts. Thus in reviewing the petition, Respondent—and, as importantly, the court—would not suspect that anything was amiss.

The court also notes that Petitioner offered no excuse whatsoever for this error. Such a cavalier attitude towards the pleading standards should not be countenanced, particularly where the error is not likely to be discovered by the courts or a pro se respondent.

In the instant case Respondent was able to obtain counsel who then identified this error which therefore limited the prejudice suffered by Respondent. But this result is fortuitous, and courts should render decisions as a matter of principle rather than solely on the happenstance of the case at bar. In most situations where an error is caught the particular tenant at bar will not be able to demonstrate prejudice since errors are usually discovered after a tenant retains an attorney. An attorney diligent enough to identify the error is often also able to adequately defend the proceeding. This can lead courts to conclude that there is no prejudice. That conclusion is often unwarranted.

Although courts must primarily evaluate cases on the facts presented, placing too much emphasis on the prejudice suffered by the tenant in the case at bar is an instance of survivorship bias. Survivorship bias occurs where too much attention is paid to parties that have survived a selective filter—in this instance the tenant's attorney's intake process—and too little attention is paid to those who have not.^[FN1]

To state the same point in slightly different terms, the strictures of RPAPL§ 741(4) are designed not just to protect the tenant who is before the court on a particular case but also must protect tenants who are not before the court.

Decisions articulating this principle often do so implicitly by referring to the inability of the courts to efficiently adjudicate cases that are not adequately pleaded. For example, in E. 168th St. Assoc. v Castillo, the court noted that the purpose of "pleading specific regulatory schemes and compliance therewith is to enable litigants and their attorneys to ascertain if there are 'potential defenses' to the proceeding prior to being in court, and for the court to be able to properly adjudicate the proceeding" (E. 168th St. Assoc. v Castillo, 60 Misc 3d 774, 784 [Civ Ct, NY County 2018] [emphasis added]). Thus, the protections exist as much for the courts as for the litigants, and the protections are in place as much for people who are not in court as for those who are (see Ligget v. Lew Realty, — NY —, 2024 NY Slip Op 03378, * 2 [Ct App 2024] ["As with all of the RSL's protections, this right is meant not to protect just a tenant, but to ensure the [*3]viability of the rent regulation system which protects tenancies in general, provides predictability to landlords, and significantly enhances the social, economic and demographic stability of New York City."] [emphasis added, internal quotation marks omitted]).

Although courts cannot suffer prejudice in the traditional sense, judges must be able to efficiently identify issues in an environment where, despite the Universal Access to Counsel Law, most tenants do not have attorneys. Again, case law from phrase this issue in terms of the inability of courts to adjudicate. For example, the Honorable Bacdayan has explained that "the fundamental omission of any statement regarding regulatory status deprives respondent and this court of critical information regarding the regulatory status of the building" (2515 LLC v Bencosme, 77 Misc 3d 1229[A] at * 4, 2023 NY Slip Op 50063[U] [Civ Ct, NY County 2023] [emphasis added]; see also Jasper v Davis, 63 Misc 3d 1209[A] at * 4, 2019 NY Slip Op 50448[U] [Civ Ct, Bronx County 2019] ["Given the number of regulating frameworks, Petitioner was obligated to put Respondent and the court on notice of the scope of Respondents rights and possible defenses. The fact that Respondent was able to retain counsel who could raise defenses to the proceeding after its commencement does not absolve Petitioner from the requirements under the RPAPL."] [emphasis added]).

To conclude this section of the analysis, mistakes as to regulatory status may be correctable by amendment. The error here stems from Petitioner's failure to allege that it receives tax credits that make the apartment rent-stabilized even though the bedroom only has three units. This error is subtle, and hard to detect, since the information needed to detect the error functionally lies outside of the court's ability to effectively monitor. Thus it is less amenable to correction by amendment than a more obvious error might be. For this reason alone, the proceeding should be dismissed. However, in addition to this problem, Respondent also points out that Petitioner failed to plead that Respondent receives HPD Section 8. The court now turns to this issue.

b. Petitioner's failure to plead that Respondent receives Section 8.

While amendments to correct misstatements of rent-regulatory status are often allowed, courts have been less willing to allow amendments to correct a misstatement of Section 8 status.

There are many cases that support this proposition, but the decision in 1068 Gerard Partnership LP v Laroche is particularly instructive. In Laroche, the tenant received HPD Section 8. The landlord failed to plead this fact. As in the case at bar, the tenant moved to dismiss and the landlord cross moved to amend. The court denied the petitioner's motion and dismissed the proceeding. The court ruled that "[w]hile certain defects may be overlooked and/or amendment granted in the absence of prejudice, [failure to plead Section 8 status] has repeatedly been found prejudicial (1068 Gerard Partnership LP v Laroche, 76 Misc 3d 1227[A] at * 1, 2022 NY Slip Op 51062[U], [Civ Ct, Bronx County 2022]).^[FN2]

Once again, courts must be mindful not to commit the error of survivorship bias. In the instant case, Respondent has retained skilled attorneys and likely will suffer no substantial prejudice from the amendment. Rather, the system as a whole is prejudiced by Petitioner's failure [*4]to plead that Respondent received a Section 8 subsidy (cf Ligget v. Lew Realty, — NY —, 2024 NY Slip Op 03378, * 2 [Ct App 2024] [noting that tenant protections do not merely protect "a tenant" but rather protect "tenancies in general"]).

Petitioner points out that, while it did not plead the Section 8 status, it did at least attempt to mail HPD Section 8 a copy of rent demand and pleadings. This is of no moment. A tenant's Section 8 status must be pleaded, and the petition must plead that the petitioner served Section 8 with the predicate notice. Both the petition and the proposed amended petition fail to do so (see NYSCEF # 24)

For example in Homestead Equities v Washington the Honorable Rolando T. Acosta addressed this issue in the context of a holdover that went to inquest. At inquest, the landlord conceded that "it had failed to set forth any allegations regarding respondent's section 8 status or petitioner's compliance with applicable Federal regulations associated therewith, but contends that the petition was nonetheless sufficient because, according to petitioner, it was simply not required to set forth such allegations" (Homestead Equities v Washington, 176 Misc 2d 459, 460-61 [Civ Ct, Kings County 1998]).

Judge Acosta denied the inquest and dismissed the holdover observing that "where the tenant sought to be removed participates in a section 8 program, the petition must allege the section 8 status of the tenant and the premises and must allege petitioner's compliance with the section 8 regulatory scheme" (Washington, 176 Misc 2d at 462 [emphasis added]).

For the purposes of the instant proceeding, the key words in the Washington decision are "must allege." It is not enough that Petitioner served the Section 8 administrator with the predicate notice or notices (if Petitioner did so). Petitioner must also plead that it did so.

The reason for service of the predicate notice on the PHA is two-fold: First, as early as possible in the process, the PHA needs to make decisions as to payments on behalf of a tenant who is either no longer in possession or whose tenancy is in jeopardy. Second, the PHA must be able to monitor the actions of the landlord and take steps to protect the Section 8 tenant, if necessary (Washington, 176 Misc 2d at 463). The reason for the requirement that a petitioner plead such service is that courts must be assured that the service was rendered.

The defense of failure to plead service on a PHA does not implicate the court's subject matter jurisdiction and can be waived if not raised (433 W. Assoc. v Murdock, 276 AD2d 360 [1st Dept 2000]). However, a landlord's failure to plead service of the notice of termination is a defense to the petition and may result in a petitioner losing a case for failure to state a cause of action.

In the instant case, Petitioner clearly knew that Respondent had HPD Section 8 since Petitioner represents that it mailed a copy of the predicate notice and pleadings to HPD. However, Petitioner—seemingly nonchalant about its failures—offers no reason why this important fact was left out of its petition or, for that matter, its amended petition.

c. Petitioner may have also notified the wrong unit with HPD.

Although less serious than the other mistakes, it appears that Petitioner may have mailed the rent demand and the pleadings to the wrong unit within HPD. Petitioner represents that it mailed the papers to HPD's "Tenant Resource Unit" at 100 Gold Street. Respondent states that the correct unit is the "Section 8 Unit," also located at 100 Gold Street.

In a vacuum, and without considering the other problems with the petition, this error [*5]could be considered de minimis (Rahman v Lewis, 78 Misc 3d 1228[A], 2023 NY Slip Op 50371[U] [Civ Ct, Bronx County 2023] ["That the mailings of the predicate notice were addressed to NYCHA's offices in Manhattan on the 9th floor at 90 Church Street, rather than the 11th floor at that same address, is a de minimis deviation from the instructions on NYCHA's website for service of legal papers and does not warrant dismissal of this proceeding."]). However when coupled with the other serious, unexplained errors in this proceeding, the failure to serve the correct unit within HPD suggests unacceptable insouciance on the part of Petitioner.

In the instant case, Petitioner has failed to adequately plead its case as required by RPAPL § 741. Petitioner failed to allege that it receives tax credits that make the apartment rent-stabilized even though the apartment is in a building with three units. Petitioner also failed to plead that Respondent receives Section 8 benefits administered by HPD. Petitioner fails to offer any reason regarding why it failed to plead these crucial facts until it was faced with a motion for a summary determination.

Each of these errors on its own might, perhaps, be subject to correction by amendment. When viewed as a whole, however, these errors amount to fundamental misstatements about the entire structure of Respondent's tenancy—misstatements that would not have been easily identified by the court (see Jericho Project Lessee v Marte-Travera, 67 Misc 3d 1204[A], 2020 NY Slip Op 50391[U] [Civ Ct, Bronx County 2020] [observing that "while one or two or possibly even more errors might be subject to amendment on a proper motion, there is a point at which a petition is so far afield from the requirements of RPAPL § 741 that it must be dismissed"]).

Where the errors are significant and cumulative, the proceeding must be dismissed. That is the case here. For these reasons Petitioner's motion to amend is denied. Respondent's motion is granted, and the proceeding is dismissed without prejudice.

This constitutes the decision/order of this court.