Opinion
SP4168/09.
Decided October 18, 2010.
Cean Owens Law Firm, LLC, Attorneys for Respondent, 867 West Merrick Road, # 201, Valley Stream, New York.
Zavatsky, Mendelsohn Levy, LLP, Attorney for Petitioner, 33 Queens Street, P.O. Box 510, New York.
In this holdover proceeding, the Petitioner is requesting a final judgment of possession and the issuance of a warrant of eviction, awarding the Petitioner-Owner the entire premises known as "771 West Merrick Road, Valley Stream NY 11580." Petitioner acknowledges, through a stipulation signed August 6, 2010, that this Court does not have personal jurisdiction over any residential tenants of the premises. This matter is only for recapture of commercial space. Therefore, "Respondents" refers to only Soforte and Ambiance Coutoure, the commercial tenants.
The issue before this Court is Petitioner's motion to amend the judgment of possession and warrant to change the address from 771 West Merrick Avenue Hempstead to 771 West Merrick Road Valley Stream. Respondents oppose the motion because they claim that this Court lacks subject matter jurisdiction.
The premises was subject to a lengthy foreclosure proceeding from 2006 to early-2009. On April 14, 2009, Petitioner became owner of the premises through a foreclosure auction. Respondents were located in the premises during that time as commercial tenants. Petitioners served Respondents with a Ten Day Notice to Quit on June 19, 2009, which contained the correct address (save for "Avenue" instead of "Road").
On July 7, 2009, Petitioner filed a petition, requesting a judgment of possession and an award of fair and reasonable value of Respondents' use and occupancy of the premises since April 14, 2009. Even though the petition had "Avenue" instead of "Road," and "Hempstead" instead of "Valley Stream," the process server was able to successfully locate the premises and serve the Respondents. The affidavit of service states the correct address of "Road" and "Valley Stream". The petition was also served personally to Peggy Harris, a managing director of the Respondents.
On August 27, 2009, both Petitioner and Respondents appeared at this Court and entered into the first stipulation of settlement. They agreed that Respondents would pay over $2,000 for use and occupancy to be received by September 4, as well as an additional $2,000 to be paid before September 10, 2009. If Respondents failed to make either payment as such, it was agreed that Petitioner would be granted a judgment of possession (upon submission of an affirmation of non-compliance from petitioner's attorney). Additionally, Respondents agreed to consent to jurisdiction of this Court and waived all defenses of jurisdiction.
On November 24, 2009, Petitioner and Respondents entered into and signed a second stipulation of settlement, which stated that all prior agreements would be honored. It also was agreed that if Respondents defaulted in making payments under the stipulation, if not cured in 7 days, Petitioner may execute a judgment of possession of the premises. After Respondents defaulted on payments due under the second stipulation of settlement, Petitioner moved for judgment of possession and a warrant of eviction of the premises. This Court rejected the request because the petition read "771 Merrick Ave. Hempstead, NY 11580" instead of "771 Merrick Rd. Valley Stream, NY 11580."
Petitioner now moves to amend the papers to reflect the correct address.
Respondents argue that this mistaken address is a jurisdictional defect and thus creates a lack of subject matter jurisdiction. Even if this Court is determined to have subject matter jurisdiction, Respondents claim that Petitioner did not follow RPAPL 741(3) by arguing that the premises from which removal was sought was not correctly and adequately described to allow amendment and the execution of a judgment of possession against Respondents.
Petitioner responds in a reply affirmation that its petition satisfied RPAPL 741(3), sufficiently describing Respondents and the premises. Furthermore, Petitioner claims that the Respondents are incorrect in believing that this Court does not have subject matter jurisdiction, stating that the incorrect address was "a typographical, inadvertent error that can easily be corrected and amended, which petitioner has moved to do." Petitioner asserts that this Court has subject matter jurisdiction over Respondents even if the mistaken address was correct.
RPAPL 741(3) provides that every petition shall: "[d]escribe the premises from which removal is sought."
However, it is well-known and elementary that mistakes or irregularities which do not affect a substantial right of a party are not fatal. This is covered by CPLR 2001, which provides:
At any stage of an action, including the filing a summons with notice, summon and complaint, or petition to commence an action, the court may permit a mistake, omission, defect or irregularity, [ ] to be corrected, upon such terms as may be just, or, if a substantial right of a party is not prejudiced, the mistake, omission, defect or irregularity shall be disregarded.
Landlord and Tenant Practice in New York, Finkelstein and Ferarra, section 15:435 corresponds with CPLR 2001:
While some lower courts have characterized a description defect as "unwaivable," even when the tenant fails to object and proceeds to trial on the merits, appellate authority has expressed considerable liberality with respect to an irregularity's correction.
Based on the basic principle of the CPLR, "mistakes not affecting substantial rights may be corrected by amendment." Covino v. Alside Aluminum Supply Co., 42 AD2d 77, 79; 345 NYS2d 721 (4th Dep't 1973). See also Kahn v. 230-79 Equity Inc., 2 Misc 3d 140(A), 784 NYS2d 921 (Table N.Y.Sup.App.Term, 2004) ("Mistakes relating to the misdescription of a party are readily subject to correction by amendment in absence of demonstrated prejudice"). Indeed, a misdescription of the legal status of the party falls within the category of amendable mistakes, "particularly when the other party is not prejudiced and should have been well aware from the outset that a misdescription was involved." Covino at 80. An amendment may be granted if the "misnomer could not possibly have misled the defendant concerning who it was that the plaintiff was [ ] seeking to sue." Suarez v. Shorehaven Homeowners Association, Inc., 202 AD2d 229, 231 [1st Dept 1994] (quoting Creative Cabinet Corp. of America v. Future Visions Computer Store, 140 AD2d 483, 484-485 [2nd Dep't 1988]).
This Court also notes that stipulations of settlement are favored by courts and "not lightly cast aside." Phokus Group v. Calcon, 7 Misc 3d 1013(A), 801 NYS2d 241, 2005 WL 927010, *4 (Kings Co. 2005), Slip Op. 50585(U) (stipulation acted as a waiver of procedural claim of improper venue) (quoting Hallock v. State, 64 NY2d 224, 230 (1984)). This is because stipulations of settlement are meant to "cover all issues contained in the underlying action between [the parties]." Id. at * 3. By its terms, all claims between [the parties] were to be resolved by the stipulation." Id. Thus, a stipulation of settlement, in addition to conduct of the parties, "constitute[s] a waiver of [any] purported defenses." Option One Mortgage Corporation v. Daddi, 60 AD3d 920, 874 NYS2d 822 (2nd Dep't 2009).
Respondents never raised the issue of jurisdiction at any time before and at the signing of this stipulation. The first stipulation included a clause stating that "Respondents waive all jurisdictional defenses and allow themselves subject to this Court's (Nassau County District Court's) jurisdiction," Thus, the Respondents waived their jurisdiction defenses to any judgment in line with the stipulation of settlement. See 34 Funding Assocs. v. Pollak , 26 AD3d 182 , 811 NYS2d 352 (1st Dep't 2006) (holding that by signing a stipulation of settlement, Respondent consented to the jurisdiction of that court as well as to judgment against Respondent of foreclosure and sale).
Still, Respondents argue that they can raise the issue of subject matter jurisdiction at any time, including after a stipulation of settlement is made. Papacostopulos v. Morrelli, 122 Misc 2d 938, 472 NYS2d 284 (NY City Civ. Ct. 1984). Respondents claim that the mistake in the address is not immaterial, but rather "a defective description" that "affects the very essence of the proceeding." Rasch's Landlord and Tenant, Summary Proceedings, section 1257, p 64. While this Court agrees that subject matter jurisdiction is not waivable, this Court does have subject matter jurisdiction over this matter. This Court has jurisdiction over all landlord-tenant matters in Nassau County, which includes both Hempstead and Valley Stream.
The Petitioner here put "Ave." instead of "Rd." and "Hempstead" instead of "Valley Stream," with the correct place number and the correct Valley Stream zip-code. The petition and corresponding documents correctly identify the Respondents as the parties whom the Petitioner is seeking to evict. The Ten Day Notice and the Referee's Deed both list the correct address and a managing director the Respondents was served with these documents. Petitioner and Respondents also made appearances at this Court, and signed two stipulations of settlement together Respondents fail to demonstrate any prejudice to justify denying Petitioner's motion to amend.
Thus, this Court finds that the misstatement made by the Petitioner is neither substantial nor prejudicial, and strict construction need not apply. Indeed, "to allow dismissal of the complaint herein would only disregard the policy of liberality in permitting the correction of a mistake but also be tantamount to elevating form over substance." Covino at 81.
This Court concludes that it has subject matter over this proceeding. The mistake made by the Petitioner was not fatal and thus can be amended and corrected. Furthermore, based on the stipulation signed by both parties, Petitioner is entitled to judgment of possession against Respondents.
Petitioner's motion to amend the petition is granted. Petitioner shall submit a new judgment and warrant to properly reflect the address involved in this proceeding.
So Ordered