NO FIXING AFTER THE FACT
After Mansour Moghadasian failed to appear in response to a holdover proceeding that had been commenced against him, a judgment was awarded in the landlord’s favor. When Moghasdasian later tried to vacate that default, the tenant noted that the owner’s pleadings were defective because it failed to allege that the cooperative apartment in question “was subject to the Martin Act (see General Business Law § 352-eeee).”
When the Queens County Civil Court agreed and dismissed the proceeding, the landlord appealed to the Appellate Term, Second Department, which reiterated established precedent that a pleading in a summary proceeding must set forth the requisite facts -- such as whether the premises are subject to some form of regulation and the tenant’s regulatory status, “because this status may determine the scope of the tenant’s rights.”
Since this unit was subject to the Martin Act, the AT2 felt it was “incumbent upon landlord to allege this fact in the petition so that tenant and the court would be adequately apprised of the basis of landlord's claim …. As landlord failed to do so, the Civil Court properly granted tenant's motion to vacate the default final judgment and to dismiss the petition as defective.”
And that, right there, is a fact.
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DECISION
Aero Mgt. v Moghadasian