Holdover Petition Was Served Before Court Assigned Initial Return Date

Landlord sued to evict tenant after tenant's lease expired. Landlord asked the court to vacate a stay of the holdover proceeding resulting from tenant's filing of an ERAP application. In response, tenant claimed that landlord's service of the petition on him was untimely because it didn't comply with RPAPL Section 733(1).

The court agreed and dismissed the case. Landlord filed the notice of petition and petition and completed service of the papers by September 2020. But the court clerk's office had stamped the papers with an endorsement that the initial return "date to be determined." This court procedure was implemented during the COVID-19 pandemic. RPAPL 733(1) required that a holdover notice of petition and petition be served between 10 and 17 days before the initial return date. Since no return date had yet been assigned when landlord served the court papers, the papers were untimely and the case must be dismissed. 

Hill v. Cubilete: Index No. 300344/20, NYLJ No. 1659401072 (Civ. Ct. Kings; 7/28/22; Harris, J)