Opinion
50845/08.
Decided April 30, 2008.
Stern Stern, Esqs., Attorneys for Respondent, By: David Lyle Stern, Esq., Brooklyn, New York.
Paul R. Kenney, Esq. Attorney for Petitioner, Brooklyn, New York.
BACKGROUND
This summary holdover proceeding was commenced by CAROLYN PARRINO ("Petitioner"), and seeks to recover possession of the second floor apartment at 1428 80th Street, Brooklyn, New York, 11229 ("Subject Premises"), based on allegations that DOROTHY RUSSO ("Respondent") is a month-to-month tenant, with no ongoing right to possession of the subject premises.
PROCEDURAL HISTORY
This proceeding first appeared on the court's calendar on January 17, 2008, and was adjourned to February 7, 2008, for Respondent's counsel to appear. On February 7, 2008, Respondent's counsel filed a notice of appearance and a verified answer ("Answer"), and the proceeding was adjourned to March 11, 2008.
Respondent's Answer asserts five defenses: 1) Failure to state a cause of action; and 2) That the premises are located in a de facto multiple dwelling; and 3) Failure of a condition precedent; and 4) Lack of personal jurisdiction; and 5) Retaliatory eviction.
On March 11, 2008, Petitioner's motion for summary judgment and related relief was heard by the Court, and the motion was submitted for a decision.
On or about March 26, 2008, Respondent moved by Order to Show Cause seeking leave to amend her Answer, and the motion was submitted for a decision. The two motions are consolidated herein for disposition.
RESPONDENT'S REQUEST FOR LEAVE TO AMEND THE ANSWER
Respondent argues that leave to amend should be granted, because while her original answer included a denial of allegations "4" and "10" of the petition, which allege that a notice of termination had been served and expired, she inadvertently failed to include allegations regarding lack of service and receipt of the termination notice.
Respondent seeks to add a sixth affirmative defense asserting said claims.
Petitioner opposes the motion arguing that the failure to properly assert a lack of service of the notice of termination in the original answer constituted a waiver of the defense.
The third affirmative defense in Respondent's Answer alleges failure of a condition precedent, but then specifies that the failure was attributable to a failure to serve the petition. The same allegations regarding failure to serve the petition are raised in the fourth affirmative defense, which alleges a lack of personal jurisdiction. It does appear that this was an inadvertent error, and that counsel intended to include the same types of allegations regarding lack of service of the notice in the third affirmative defense, which are recited in the fourth affirmative defense regarding the petition.
However, whether inadvertent or not, the answer fails to preserve any claim regarding service of the notice. Moreover, the blank denial of the allegation of the petition is insufficient to require a traverse hearing. Banchik v. Ruggieri , N.Y.L.J., Nov. 18, 1998.
The first time that Respondent attempts to assert specific factual claims disputing the facts recited in the affidavit of service for the notice is in the moving papers.
Any objection to service of a predicate notice or pleading is waived if it is not interposed in the answer or raised in a pre-answer motion to dismiss. RPS Greenvale Realty, LLC v. Rosa's of Roslyn, Inc . 18 Misc 3d 1145(A) (NY Dist. Ct. 2008); Addesso v. Shemtob , 70 NY2d 689 (1987); DeFilippis v. Perez , 148 AD2d 490 (2nd Dept., 1989).
While permission to amend an answer is to be freely given, the waiver of a jurisdictional defense cannot be undone by a subsequent amendment to a pleading adding the missing affirmative defense. McGowan v. Hoffmeister , 15 AD3d 297 (1st Dept., 2005).
Respondent argues even if the failure to properly serve a notice of termination was not raised in the original answer, the defense was not waived, because it is embodied in the first affirmative defense which alleges failure to state a cause of action. However, the Appellate Division, Second Department has held that the defense of failure to state a cause of action claim can only be raised by CPLR § 3211(a)(7) motion and is not properly asserted in an answer. Bentivegna v. Meenan Oil Co. , 126 AD2d 506 (2nd Dept., 1987).
Finally, Respondent's alternative argument that leave to amend should be permitted, even if traverse has been waived, to assert a lack of a condition precedent based on the failure to serve the predicate notice, is not persuasive, under the circumstances herein. The sixth affirmative defense in the proposed amended answer is predicated on an attempt to dispute the facts alleged in the affidavit of service for the predicate notice. This is the sole amendment requested. It is a jurisdictional defense under the title of failure to meet a condition precedent. Respondent's time to dispute the facts in the affidavit of the process server has passed. The Court finds no merit to the proposed amended answer.
Moreover, while it is true that even in the absence of any defense or denial, Petitioner is still required to prove service of a predicate notice as part of its prima facie case, the proposed amended pleading changes nothing in this regard. The affidavits of service and the pleadings do state a cause of action and are sufficient on their face to establish a presumption of delivery, absent a timely and proper denial. Slater v. Congress of Racial Equality, Inc. , 48 AD2d 623 (1st Dept., 1975). ALH Properties Thirteen, Inc. v. Li , N.Y.L.J., Sept. 1, 1999, p. 27, col.4.
The Respondent's Order to Show Cause which seeks to assert a sixth affirmative defense disputing service of the predicate notice herein is therefore denied, as the issue of service of the predicate notice has been waived.
PETITIONER'S MOTION FOR SUMMARY JUDGMENT
Petitioner moves for summary judgment pursuant to CPLR § 3212, alleging there are no triable issues of fact, or in the alternative, for an order directing the Respondent to pay use and occupancy and related relief.
Pursuant to CPLR § 3212, a motion for summary judgment shall be granted if, upon all the papers and proof submitted, the cause of action is established sufficiently to warrant the court in directing judgment in favor of one party as a matter of law. In order for Respondent to defeat a motion for summary judgment, she must show facts sufficient to require a trial. "It is incumbent upon a (party) who opposes a motion for summary judgment to assemble, lay bear and reveal his proofs, in order to show that the matters set up in his answer are real and are capable of being established upon a trial." DiSabato v. Soffes , 9 AD2d 297 (1st Dept., 1959); Spearmon v. Times Square Stores Corp ., 96 AD2d 552 (2nd Dept., 1983).
Petitioner alleges the moving papers establish all of the elements of her prima facia case for termination of a month-to-month tenancy, and that the Respondent has no meritorious defense to the claim of possession. The record includes a copy of the deed to the subject premises, and a certified copy of the deed was annexed to Petitioner's rely papers. Petitioner further alleges that Respondent is a month-to-month tenant, there is no lease in effect and the Subject Premises is not subject to rent regulation. None of these allegations are denied by Respondent.
In opposition to the request for summary judgment, Respondent argues that the notice of termination was improperly served, however as determined above, this defense was not preserved in the Answer and therefore, cannot be considered in defense to this motion. The Answer does include a defense of lack of personal jurisdiction based on the allegation that service of the Notice of Petition and Petition was improper. However, the Answer does not plead this defense with sufficient specificity to rebut the presumption of proper service established by the affidavit of service of the process server and require traverse hearing. Banchik v. Ruggieri , Supra.
Respondent further argues the motion must be denied because the premises are incorrectly described as a two family house in the petition, and the Subject Building is a de facto multiple dwelling. This allegation has no bearing on the issue of Respondent's right to continued possession of the Subject Premises, or to petitioner's entitlement to the entry of a judgment of possession herein. As held by the Appellate Term, Second Department ". . . the owner of an unregistered multiple dwelling may maintain a holdover proceeding and may recover possession in such a proceeding where the ground for recovery is not rent-based, although no ancillary money judgment may be sought or awarded." Czerwinski v. Hayes , 8 Misc 3d 89, at 94 (App. Term, 2nd Dept., 2005). In Hayes the Appellate Term clearly and unequivocally stated that the issue of whether or not a premises is a de facto multiple dwelling is not an element of a landlord's prima facie case in a holdover proceeding. Therefore, the defense is not a bar to summary judgment in this proceeding where the ground for recovery is not rent based.
However, the defense is a complete defense to Petitioner's claim for use and occupancy. Moreover, the defense is established by Respondent by submission of documentation indicating that there are two outstanding ECB violations for the conversion of the basement to a class A apartment, in violation of the certificate of occupancy for the subject premises. While the submission was made after the record had been closed, and the Respondent did not submit any certified self-authenticating documents, the Court confirmed the allegation by reference to the Department of Buildings Records which clearly list the violations. This Court may take judicial notice of information taken from public records. Glorius v. Siegel , 5 Misc 3d 1015(A) (2004); Siwek v. Mahoney , 39 NY2d 159 (1976); MDL § 328(3).
Respondents opposition papers advised an inspection was scheduled to determine the issue, and that the results would soon be available, so Petitioner was on notice of this claim prior to the close of the record.
Respondent did raise the issue that the Petitioner failed to submit a certified copy of the deed in the initial moving papers in support of the motion for summary judgment. However, the Petitioner did attach a certified copy of the deed to their reply papers, and a certified document is self authenticating and may even be submitted after the record is closed. The Court confirmed the authenticity of the document through the ACRIS website, which records the Court may take judicial notice of. Glorius v Siegal , Supra.
Respondent fails to raise any material issues of fact that require a trial. Respondent does not deny the merits of Petitioner's allegations in regards to her right to remain in the subject premises, after the termination of her tenancy.
Based on the foregoing, Petitioner's motion for summary judgment is granted to the extent of awarding Petitioner a final judgment of possession, and the forthwith issuance of the warrant of eviction. Execution of the warrant is stayed through June 2, 2008 to afford Respondent an opportunity to vacate the premises. Petitioner's claim for use and occupancy is dismissed based on Respondent's second affirmative defense.
This constitutes the decision and order of this court.