Opinion
2021-50894
09-21-2021
Dupont Realty, LLC, Petitioner-Landlord-Appellant, v. Maximino Garcia and John Garcia, Respondents-Tenants, and Alfonsa Santiago, Respondent-Undertenant-Respondent, and "John Doe" and "Jane Doe," Undertenants.
Unpublished Opinion
Petitioner-landlord appeals from an order of the Civil Court of the City of New York, New York County (Frances A. Ortiz, J.), dated February 10, 2020, which denied its motion to amend the petition and for summary judgment of possession in a nonpayment summary proceeding.
PRESENT: Edmead, P.J., Brigantti, Hagler JJ.
PER CURIAM.
Order (Frances A. Ortiz, J.), dated February 10, 2020, modified, without costs, petitioner-landlord's motion to amend the petition granted and the matter remanded to Civil Court for further proceedings, including disposition of petitioner-landlord's motion for summary judgment.
Civil Court improvidently exercised its discretion in denying petitioner-landlord's motion to amend the petition to correct a misstatement as to the multiple dwelling status of the building (see Jackson v New York City Hous. Auth., 88 Misc.2d 121 [App Term, 1st Dept 1976]). Permission to amend pleadings should be "freely given" (CPLR 3025[b]), and there was no evidence of any prejudice or surprise to respondents by to the proposed amendment (see A.N. Frieda Diamonds, Inc. v Kaminski, 122 A.D.3d 517 [2014]) . Since the limited proposed amendment was clearly described in the moving papers, petitioner-landlord's failure to submit a proposed amended petition with its moving papers (see CPLR 3025[b]) was a technical defect, which the court should have overlooked (see CPLR 2001 ; Medina v City of New York, 134 A.D.3d 433 [2015]). Likewise, petitioner's reliance upon subdivision (c) of CPLR 3025, rather than subdivision (b), caused no prejudice, as respondent was aware of the relief being sought (see Pursuit Inv. Mgt., LLC v Alpha Beta Capital Partners, L.P., 134 A.D.3d 502 [2015]; Moon v Tupler, 110 A.D.3d 486 [2013]), and applications to amend under either subdivision are determined "in the same manner and by weighing the same considerations" (Murray v City of New York, 43 N.Y.2d 400, 405 [1977]).
Civil Court did not reach the balance of petitioner-landlord's motion seeking summary judgment, and we remand the matter to Civil Court for such determination.