LANDLORD/TENANT IN NY: USE THE NEW FORM

Marshall v. Simmons, NYLJ October 07, 2020 • Date filed: 2020-09-23 • Court: Civil Court, Kings • Judge: Judge Kenneth Barany • Case Number: 080571/19:

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More glaring, however, is the deficiency of the notice of petition dated October 1, 2019 which fails to comport with the current pleading requirements. A new form for the Notice of Petition in Holdover proceedings was promulgated under 22 NYCRR §208.42(b) and (c) pursuant to Administrative Order No. 163 dated August 7, 2019 issued by the Honorable Lawrence K. Marks Chief Administrative Judge of the State of New York2. As part of Administrative order no. 163 Judge Marks directed that “Use of these forms shall be optional up to and including September 30, 2019, and mandatory thereafter (emphasis supplied). I further repeal all former versions of the form notice of petition in nonpayment and holdover proceedings”.

The reason for the change in form is clear as evidenced by the development and institution of various court programs over the last several years intent on assisting pro-se litigants and increasing attorney representation of such individuals. Programs such as the Assigned Counsel Project, have been specifically put in place to accomplish this purpose. Within the context of the newly adopted Notice of Petition for Holdover proceedings is notice to respondents on where to seek assistance on Legal help, Language help, ADA Help, Financial Help, Help at the Courthouse and Online Help. It also advises respondents as to their right to a postponement, and the Rent Deposit Law. In many cases this has led to representation prior to the first court date, approvals for money in process prior to the first court date etc.

In the proceeding at bar the notice of petition dated October 1, 2019 is not the approved form which was mandatory for use as of that date. It fails to contain any of the information now required by court administrative directive3. Therefore, respondent’s motion is granted dismissing this proceeding as to all respondents without prejudice to petitioner commencing a new action or proceeding. As the dismissal is not on the merits and is without prejudice, the balance of respondent’s motion seeking legal fees is denied. Such denial is without prejudice to respondent’s right to renew the application for legal fees in any future action or proceeding commenced by petitioner. In light of the foregoing the court need not address the alleged deficiency of the date omission in the notice of petition or reach a determination as to whether respondent qualifies for the “family” exception under RPAPL §713(7). This constitutes the Decision and Order of the Court.

Footnotes

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2. Judge marks also directed that a similar notice of petition be promulgated for nonpayment proceedings and posted on the Unified Court website.

3. The use of the correct form cannot be understated. For example, the rent deposit law allows a landlord to request a deposit of rent after sixty days of adjournments requested solely by a respondent. Both of the first two adjournment stipulations in this proceeding indicated that it was respondent's request to obtain counsel. Had respondent received the proper form it is quite possible she could have obtained representation for the first court date thereby avoiding having a total of two months of adjournments charged against her. The fact that she ultimately obtained counsel does not absolve petitioner from this pleading form obligation."