Holdover Petition Served 13 Days Before Initial Court Date Was Defective

Landlord sued to evict tenant. Landlord claimed that the building contained fewer than six apartments and therefore wasn't rent stabilized. Tenant agreed to move out but later asked the court to vacate the settlement agreement and dismiss the case, claiming that he was rent stabilized. The court noted that there were questions of fact as to whether the building had six residential units. But the court vacated the settlement agreement and dismissed the case because service of the notice of petition and petition was completed 13 days before the initial court return date, in violation of Real Property Actions and Proceedings law (RPAPL) Section 733. So the case must be dismissed for lack of personal and subject matter jurisdiction. RPAPL Section 733 required that a notice of petition and petition be served at least five and not more than 12 days before the court return date.

Valane v. Cruz: Index No. 57334/2017, NYLJ No. 1532982000 (Civ. Ct. Bronx; 8/24/18; Ibrahim, J)