Atlantic Westerly v. I.G.M.P. Management Inc.

(Civ. Ct. N.Y. Cty. 3/31/04)

We represented: Respondent

Peter Moulton, J.

DECISION and ORDER Respondent moves for an order dismissing the Notice of Petition and Petition, pursuant to CPLR §3212, asserting that the petitioner has not obtained subject matter jurisdiction over respondent. Petitioner moves for an order: (a) striking respondent's affirmative defenses; and (b) amending the Notice of Petition.¹

FACTS

Petitioner is the landlord of the premises known as 300 West 55th Street a/k/a 929 Eighth Avenue in Manhattan. Respondent is the tenant of premises/store #9 therein, pursuant to a lease entered into by the parties on January 18, 1994. The lease was renewed on September 17, 1998. On January 27, 2004, petitioner served a Five Day Rent Demand naming correspondent correctly, but addressed to "store #10" in the premises. The affidavit of service indicates that the Rent Demand was served upon "store #10" by substituted service by leaving a copy with a "John Doe." Subsequently, a Notice of Petition and Petition were served on "store #10" at the same premises by substituted service. On March 2, 2004, respondent served a Notice of Appearance and Answer.

Respondent now moves to dismiss the proceeding, arguing that the predicate notice and the Notice of Petition and Petition inaccurately describe the premises as "store #10", when the lease and lease renewal correctly describe the premises as "store #9". Respondent asserts that this defect deprives the court of subject matter jurisdiction and mandates dismissal of the proceeding.

Petitioner moves for an order dismissing respondent's affirmative defenses and for an order permitting it to amend the Notice of Petition and Petition to reflect the correct store number of respondent's premises.

DISCUSSION

Because a summary proceeding is entirely statutory in origin, there must be strict compliance with the statute to give the court jurisdiction.(Perrotta v. Western Regional Off-Track Betting Corp., 98 AD2d 1 [1983]). For many years, the Courts strictly construed compliance with pleading requirements. (Dulberg v. Ebenhart, 68 AD2d 323 [1979]). The recent trend has been to more liberally permit correction by amendment. (Jackson v. New York City Housing Authority, 88 Misc2d 121 [1976]). However, this liberal approach has been limited and if the defect in the petition affects the "very essence of the proceeding" (Papacostopulos v. Morelli, 122 Misc2d 938 [1984]), or if the petition is "fundamentally flawed in material respects" it cannot serve as a predicate for eviction, (141 Street Associates v. Smith, NYLJ, June 20, 1991, p. 25 col. 3 [App. Term 1st Dept.]).

In the case at bar, the caption in the predicate notice and Notice of Petition and Petition misidentify the subject premises and therefore must be dismissed because this defect deprives the court of subject matter jurisdiction. (SeeClarke v. Wallace Oil Company, 284 AD2d 492 [2001]). As held in Empire State Building Co. LLC v. Progressive Catering Services, 2 Misc3d 545 [2003];

"For purposes of a summary proceeding to recover possession of real property based upon nonpayment of rent, the description of the premises in the notice of petition and petition must be accurate enough to allow the marshal, when executing the warrant of eviction to locate the premises without additional information."

Here, petitioner's failure to accurately describe the premises from which respondent is to be evicted, is a "fundamental flaw" in the documents and is thus not amendable. Therefore, the proceeding is dismissed.

CONCLUSION

Respondent's motion to dismiss the proceeding is granted in its entirety. The clerk shall enter judgment dismissing the petition. Petitioner's motion is denied as moot.

ENDNOTE

¹In determining these motions the court considered the following documents: the respondent's motion to dismiss the Notice of Petition and Petition; petitioner's motion to strike the affirmative defenses and to amend the Notice of Petition and; respondent's affirmation in opposition to petitioner's motion.