thereto and incorporated therein, that petitioner served a renewal lease and that respondent
refused to sign a renewal lease, thereby creating a month-to-month tenancy (Acevedo v
Layton, 131 Misc 2d 406 [2d Dept. 1985]; citing Bianchi v Savage, 83 Misc 2d 1007
[City Ct. White Plains 1975]). Furthermore, petitioner also failed to serve a notice to cure as
required by 9 NYCRR § 2504.1(d) prior to seeking to terminate an ETPA tenancy.
Petitioner has an obligation to serve a proper predicate notice and a "defect in a predicate notice
cannot be cured by papers submitted in opposition to the motion to dismiss" (Dowarp Realty
Co. v Acevedo, NYLJ, Apr. 3, 1990 at 26, c 2 [App Term 1st Dept.], 1990 NY App. Div.
LEXIS 16865). The failure to serve the required notices on the tenant with respect to termination
of the tenancy and to allege same in the petition, renders the petition jurisdictionally defective
under the ETPA regulations (9 NYCRR § 2504.3 and RPAPL § 741). Based upon the
foregoing, the Court finds that petitioner failed to serve a proper notice of termination and has
failed to state a cause of action pursuant to RPAPL § 741 in the instant matter.
For the reason stated herein, the motion to dismiss is granted and the petition is
dismissed.
With respect to respondent's motion for summary judgment on his affirmative defense of
retaliatory eviction, given the Court's dismissal of the petition, respondent's motion is rendered
moot.
Lastly, respondent's counterclaim for attorney's fees pursuant to RPL § 223-b(3) is
dismissed. RPL § 223-b(3) specifically provides that a landlord shall be subject to a civil
action if the landlord is found to have violated the provisions of RPL §223-b. The Court