Civil Court of the City of New York, Queens County, April 25, 2023

New York Legal Assistance Group, New York City (Holli McClean and Lisa Rivera of counsel), for respondents.

Laurence M. Savedoff, P.L.L.C., Bronx (Laurence M. Savedoff of counsel), for petitioner.

The court's decision and order is as follows:

Petitioner M&S Queens Realty LLC (petitioner) commenced the instant expiration of lease holdover proceeding against Kim London, John Doe, and Jane Doe (respondents) by filing of a notice of petition and petition on August 25, 2022. Respondents now move to dismiss on the basis of improper use of an outdated notice of petition form, failure to exercise reasonable application in serving the predicate 90-day notice of nonrenewal and termination, and improper use of a pseudonym as to respondent Jane Doe. Petitioner cross-moves to amend the petition to substitute respondent Bernard Birtha for Jane Doe.

On August 7, 2019, over three years before this proceeding was commenced, then-Chief Administrative Judge Lawrence K. Marks issued Administrative Order AO/163/19 amending 22 NYCRR 208.42 (b) to provide for a standardized "form notice of petition for mandatory use in eviction proceedings involving residential property under Article 7 of the Real Property Actions and Proceedings Law [for use in holdover proceedings]." Unlike the prior court rule, which merely provided guidance on the type of language needed for a notice of petition to comply with Real Property Actions and Proceedings Law § 731, the current regulation attaches a sample notice of petition with the precise required words. The new notice of petition form was initially optional and became mandatory for all filings as of October 1, 2019.

The Chief Administrative Judge has the authority to regulate the form of the notice of petition as part of her constitutionally delegated power to supervise the unified court system and to regulate its policies and procedures (NY Const, art VI, § 28 [b], [c]; Judiciary Law § 212 [2] [d]; 22 NYCRR 80.1).

The new notice of petition form includes significant new language not included in prior iterations, including information on accessing free counsel and requesting an interpreter, a disability accommodation, and an adjournment of the initial appearance. Given these substantive changes, several trial courts have held that the use of an outdated notice of petition is a material defect in commencement that mandates dismissal{**79 Misc 3d at 790} without prejudice (see e.g. New York Hous. Auth. v Destin, NYLJ, Sept. 15, 2020 at 17, col 2, 2020 NYLJ LEXIS 1460, *3-4 [Civ Ct, Kings County 2020] [rejecting a lack of prejudice argument and citing Parker v Mack (61 NY2d 114 [1984]) for the proposition that actual notice is not a substitute for compliance with statutory prescriptions]; Marshall v Simmons, 69 Misc 3d 994, 996-997 [Civ Ct, Kings County 2020]; Mannapova v Mannopova, 2022 NY Slip Op 34549[U], *2-3 [Civ Ct, Richmond County 2022]; Jeannot v Molier, Civ Ct, Queens County, Apr. 18, 2023, Thermos, J., index No. 50309/22).

In its opposition petitioner concedes that it made an error in its notice of petition, which does not include any of the new required language, and asks this court to treat the defect in form as a non-prejudicial technical infirmity that may be disregarded pursuant to CPLR 2101 (f) (see 1700 York Assoc. v Kaskel, 182 Misc 2d 586, 588-589 [Civ Ct, NY County 1999] [holding that a notice of petition that omitted the court's street address was non-prejudicial where the respondent otherwise appeared in court]). This court disagrees.

While the Second Department, in which this court sits, utilizes a prejudice analysis rather than a strict compliance approach in assessing defects in the commencement of summary proceedings (see Siedlecki v Doscher, 33 Misc 3d 18, 20 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011] [failure to timely file affidavit of service with the clerk at commencement, where papers were otherwise properly served, was not a fatal defect]; cf. Riverside Syndicate, Inc. v Saltzman, 49 AD3d 402 [1st Dept 2008]) a substantive error or omission in a notice of petition, as occurred here, is akin to a defective predicate notice, as it provides important information to the respondent in advance of the first court date and is a part and parcel of commencement itself (see Chalfonte Realty Corp. v Streator, Inc., 142 Misc 2d 501, 503 [Civ Ct, NY County 1989] [concluding that the notice of petition may not be amended and citing to the analogous proposition in the context of a summons, as held in Ciaschi v Town of Enfield (86 AD2d 903, 904 [3d Dept 1982])]).

Instructively, predicate notices are non-amendable (Chinatown Apts. v Chu Cho Lam, 51 NY2d 786 [1980]; Bray Realty, LLC v Pilaj, 59 Misc 3d 130[A], 2018 NY Slip Op 50426[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]), and as such the appellate courts, including in the Second Department, have not hesitated to find prejudice warranting dismissal based{**79 Misc 3d at 791} on even modest technical defects that misstate the law or otherwise fail to fully apprise respondents of their rights (see e.g. 582 Gates, LLC v Farmer, 65 Misc 3d 156[A], 2019 NY Slip Op 51959[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019] [predicate notice to quit which stated respondent was prior owner but did not state the specific subsection of the RPAPL under which the proceeding was commenced was defective]; 1646 Union, LLC v Simpson, 62 Misc 3d 142[A], 2019 NY Slip Op 50089[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019] [15-day predicate notice for failure to sign a rent-stabilized renewal lease that stated tenant would be terminated if it failed to sign the lease was not sufficiently unequivocal to constitute a termination notice and mandated dismissal]; see also EOM 106-15 217th Corp. v Severine, 62 Misc 3d 141[A], 2019 NY Slip Op 50068[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; Bayview [*2]Loan Servicing, LLC v Lyn-Jay, Inc., 54 Misc 3d 140[A], 2017 NY Slip Op 50160[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; Singh v Ramirez, 20 Misc 3d 142[A], 2008 NY Slip Op 51680[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008]).

Accordingly, the court finds that petitioner's failure to utilize the court-mandated notice of petition form over three years after its implementation by the Chief Administrative Judge is a fatal defect in the commencement of this proceeding, which requires dismissal without prejudice. In light of the foregoing, the court does not reach the remaining branches of respondents' motion and denies petitioner's cross-motion to amend as moot.