Karl A. Scully, for appellants. Law Offices of Joseph R. Miano (Jennifer C. Kruglinski), for respondent.

Appeal from an order of the Justice Court of the Town of Ossining, Westchester County (Michael L. Tawil, J.), entered August 15, 2016. The order, entered pursuant to an oral decision of the same court made on August 4, 2016, after a hearing, denied tenants' motion to vacate (1) a default final judgment of that court entered June 30, 2016 upon tenants' failure to appear at a June 23, 2016 court date in a holdover summary proceeding, and (2) a warrant of that court issued pursuant to the default final judgment.

ORDERED that, on the court's own motion, the notice of appeal from the oral decision is deemed a premature notice of appeal from the order entered August 15, 2016 (see CPLR 5520 [c]); and it is further,

ORDERED that the order entered August 15, 2016 is reversed, without costs, tenants' motion to vacate the default final judgment and warrant is granted, and the petition is dismissed.

Landlord, a cooperative corporation, served tenants, proprietary lessees of an apartment in landlord's building, with a 10-day notice to cure, alleging that tenants were "engaging in objectionable conduct by causing noxious odors to emit from your apartment into the common areas of the building." The petition does not allege the service of a notice of termination, and no such notice is attached to the petition.

The parties first appeared before the Justice Court at the beginning of June 2016. At that [*2]time, the court ordered tenants to serve an answer by June 17, 2016 and adjourned the matter until June 23, 2016. Tenants interposed an answer on June 18, 2016, denying the material allegations of the petition and counterclaiming to recover based on a human rights violation and for attorney's fees. On papers dated June 22, 2016 and returnable July 14, 2016, landlord moved to dismiss tenants' counterclaims. Tenants defaulted in appearing on June 23, 2016, and, on June 30, 2016, the Justice Court entered a default final judgment awarding landlord possession and attorney's fees in the sum of $1,000. The final judgment did not expressly dispose of tenants' counterclaims. A warrant issued pursuant to the default final judgment.

Tenants moved on July 11, 2016 to vacate the default final judgment and warrant, averring, among other things, that they had not appeared on June 23, 2016 because they believed that the court date had been changed to the return date of July 14, 2016 for landlord's motion to dismiss. The Justice Court denied tenants' motion. We reverse, as the record shows that there was no proper basis for the entry of the default final judgment.

It is elementary that a holdover proceeding may only be brought after the expiration of a tenancy (RPAPL 711 [1]). Thus, for relief to be granted to a petitioner in a holdover proceeding, the petition must demonstrate that the tenancy expired prior to the commencement of the proceeding. Where a proceeding is based on a breach of a lease, the petition must allege that a notice of termination was served (see Kings Highway Realty Corp. v Riley, 35 Misc 3d 127[A], 2012 NY Slip Op 50572[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). Here, as tenants contend, the holdover petition is fatally defective in that it fails to plead that a notice of termination was served on tenants. Since a default judgment may not be granted on such facially insufficient papers (see Martine Assoc. LLC v Minck, 5 Misc 3d 61 [App Term, 2d Dept, 2d & 11th Jud Dists 2004]; Kentpark Realty Corp. v Lasertone Corp., 3 Misc 3d 28 [App Term, 2d Dept, 2d & 11th Jud Dists 2004]; cf. Gonzalez v Peterson, 177 Misc 2d 940 [App Term, 1st Dept 1998, affd 258 AD2d 298 [1999]), the default final judgment and warrant must be vacated, and, upon a review of the pleadings and papers (see CPLR 409 [b]), the petition must be dismissed (see Kings Highway Realty Corp. v Riley, 35 Misc 3d 127[A], 2012 NY Slip Op 50572[U]).

However, in the circumstances of this case, including the overwhelming proof that tenants were in breach of their lease, we decline tenants' request to be restored to possession (see Soukouna v 365 Canal Corp., 48 AD3d 359 [2008]) and for an award of attorney's fees (see Kralik v 239 E. 79th St. Owners Corp., 93 AD3d 569 [2012]).

Accordingly, the order is reversed, tenants' motion to vacate the default final judgment and warrant is granted, and the petition is dismissed.

GARGUILO, J.P., and RUDERMAN, J., concur.

TOLBERT, J., taking no part.