Opinion
2014-1146 K C
03-18-2016
1346 PARK PLACE HDFC, Respondent, v. Cauleen WRIGHT and Donald Wright, Appellants, and “John Doe” and “Jane Doe”, Undertenants.
Donaldson & Chilliest, LLP, New York City (Anthony S. Chilliest of counsel), for appellants. Jacqueline Handel–Harbour, New York City (Seth Denenberg of counsel), for respondent.
Donaldson & Chilliest, LLP, New York City (Anthony S. Chilliest of counsel), for appellants.
Jacqueline Handel–Harbour, New York City (Seth Denenberg of counsel), for respondent.
PRESENT: PESCE, P.J., WESTON and SOLOMON, JJ.
Opinion
Appeal from a final judgment of the Civil Court of the City of New York, Kings County (Gary Franklin Marton, J.), entered August 30, 2013. The final judgment, entered following a failure by tenants to participate upon a continued date of a nonjury trial, awarded landlord possession in a holdover summary proceeding. The appeal from the final judgment brings up for review the denial of tenants' request for an adjournment and, as limited by the brief, so much of an order of the same court (Eleanora Ofshtein, J.) dated March 15, 2013 as conditionally granted the branch of landlord's motion seeking to dismiss tenants' affirmative defense of defective verification of the petition, and as granted the branch of landlord's motion seeking to dismiss tenants' affirmative defense of a defective notice to cure. ORDERED that the appeal is dismissed except insofar as it brings up for review the denial of tenants' request for an adjournment and the above-stated portions of the order dated March 15, 2013 (see CPLR 5511 ; Katz v. Katz, 68 A.D.2d 536, 540–542, 418 N.Y.S.2d 99 [1979] ); and it is further,
ORDERED that the final judgment is reversed, without costs, and the matter is remitted to the Civil Court for a new trial.
In November 2012, landlord commenced this holdover proceeding to recover the subject premises after tenants had allegedly violated the terms of the proprietary lease by making unauthorized renovations to their bathroom. The petition included a verification by landlord's attorney dated and signed November 13, 2012. Tenants submitted an answer, dated November 24, 2012, in which they asserted, among other things, the affirmative defenses that the notice to cure was defective in that it failed to sufficiently allege how the default could be cured, and that the petition was not properly verified by a person who had actual knowledge of the facts and circumstances alleged. Thereafter, landlord moved to, among other things, dismiss the affirmative defenses, and tenants opposed the motion. By order dated March 15, 2013, the Civil Court (Eleanora Ofshtein, J.), insofar as is relevant to this appeal, conditionally granted the branch of landlord's motion seeking to dismiss tenants' affirmative defense of defective verification of the petition, and granted the branch of landlord's motion seeking to dismiss tenants' affirmative defense of a defective notice to cure.
A nonjury trial was commenced on July 17, 2013, at which landlord presented five of its witnesses. During the cross-examination of the last of the five witnesses, the Civil Court (Gary Franklin Marton, J.) asked tenants' attorney if he had many more questions for the witness, at which time tenants' attorney informed the court that he was starting a criminal trial the next day. The parties then agreed to adjourn the proceeding until August 5, 2013. On the adjourned date, Cauleen Wright appeared and informed the court that her attorney had told her that he could not “make it” because he was on trial in another matter, and she requested an adjournment. The court stated that the proceeding was continuing “whether he's here or not,” and the last witness was re-called to the stand for re-direct examination. Upon the completion of that examination , landlord's attorney informed the court that tenants' attorney had faxed him a letter that morning indicating that “he would be unprepared to resume today.” The same witness was then re-called by landlord's attorney in order to submit additional documentary evidence, after which landlord rested its case. The court then asked Ms. Wright if she had anything to say, and she replied that she would have to represent herself since her attorney was not present. The court informed Ms. Wright that she could not represent herself since she had an attorney, but, if she fired her attorney, she could then represent herself. The court's written decision after trial, dated August 30, 2013, states that “[a]fter a delay of about ten or fifteen minutes, Ms. Wright advised the court that she was not going to discharge her lawyer. Thereupon the trial resumed” without tenants' participation. Landlord was awarded a final judgment of possession on August 30, 2013.
Inasmuch as the final judgment in this holdover proceeding was entered after tenants failed to participate on a continued trial date, the final judgment is deemed to have been entered upon tenants' default and “review [thereof is] limited to matters which were the subject of contest below” (Katz v. Katz, 68 A.D.2d 536, 540–542, 418 N.Y.S.2d 99 [1979] [internal quotation marks and citation omitted]; see also Hawes v. Lewis, 127 A.D.3d 921, 7 N.Y.S.3d 367 [2015] ). Consequently, review herein is limited to the trial court's denial of tenants' request for an adjournment and so much of the order dated March 15, 2013 as conditionally granted the branch of landlord's motion seeking to dismiss tenants' affirmative defense of defective verification of the petition, and granted the branch of landlord's motion seeking to dismiss tenants' affirmative defense of defective notice to cure.
It is well settled that a petition can be verified by an attorney pursuant to RPAPL 741 (see Sella Props. v. DeLeon, 25 Misc.3d 85, 890 N.Y.S.2d 254 [App.Term, 2d Dept, 2d, 11th & 13th Jud.Dists.2009] ). Consequently, since the petition in this case was verified by landlord's attorney, there is no merit to tenants' contention that the Civil Court lacked subject matter jurisdiction because the petition was not properly verified. In any event, the failure to verify, or properly verify, a petition in a summary proceeding is not a jurisdictional defect (see Hablin Realty Corp. v. McCain, 123 Misc.2d 777, 778, 478 N.Y.S.2d 224 [App.Term, 1st Dept.1984] ; see generally Matter of Miller v. Board of Assessors, 91 N.Y.2d 82, 86, 666 N.Y.S.2d 1012, 689 N.E.2d 906 [1997] [“The lack of a proper verification on a tax certiorari petition is not a jurisdictional defect”] ). In addition, pursuant to CPLR 3022, a party may treat a defectively verified, or unverified, pleading as a ity if the party “gives notice with due diligence to the attorney of the adverse party that he elects to,” and “due diligence” has been construed to mean raising an immediate objection or, at least, within 24 hours of the receipt of the defective pleading (see Air N.Y. v. Alphonse Hotel Corp., 86 A.D.2d 932, 448 N.Y.S.2d 795 [1982] ; Siegel, New York Practice § 235 at 393 –394 [5th ed. 2001] ), which the record does not indicate was done in the case at bar.
We find that the notice to cure in the case at bar adequately apprised tenants of the conditions that landlord wished to have cured and referenced the specific section of the lease that addresses the conditions (see generally Chinatown Apts. v. Chu Cho Lam, 51 N.Y.2d 786, 788, 433 N.Y.S.2d 86, 412 N.E.2d 1312 [1980] ; Ellivkroy Realty Corp. v. HDP 86 Sponsor Corp., 162 A.D.2d 238, 238, 556 N.Y.S.2d 339 [1990] ; Garland v. Titan W. Assoc., 147 A.D.2d 304, 310–311, 543 N.Y.S.2d 56 [1989] ). The notice set forth sufficient facts to establish the grounds for tenants' eviction, informed tenants as to how they had violated the lease (see Westhampton Cabins & Cabanas Owners Corp. v. Westhampton Bath & Tennis Club Owners Corp., 62 A.D.3d 987, 988, 882 N.Y.S.2d 124 [2009] ), and adequately advised tenants so that they could frame a defense (see Rascoff/Zsyblat Org. v. Directors Guild of Am., 297 A.D.2d 241, 242, 746 N.Y.S.2d 388 [2002] ; McGoldrick v. DeCruz, 195 Misc.2d 414, 415, 758 N.Y.S.2d 756 [App.Term, 1st Dept.2003] ). Consequently, the Civil Court properly dismissed tenants' affirmative defense regarding the notice to cure.
The Civil Court, however, improvidently exercised its discretion in denying tenants' request for an adjournment. A determination as to whether to grant an adjournment of a trial is addressed to the sound discretion of the court (see Byrnes v. Varlack, 17 A.D.3d 616, 794 N.Y.S.2d 81 [2005] ; Brusco v. Davis–Klages, 302 A.D.2d 674, 754 N.Y.S.2d 725 [2003] ). It is an improvident exercise of discretion to deny an adjournment where the evidence to be presented is material, where the adjournment is not sought in order to delay the proceedings and where the party seeking the adjournment has acted with due diligence to protect its interest (see Matter of Shepard, 286 A.D.2d 336, 728 N.Y.S.2d 784 [2001] ; Jadar Dev. Corp. v. Greenspan, 230 A.D.2d 828, 646 N.Y.S.2d 828 [1996] ; see also Byrnes v. Varlack, 17 A.D.3d at 617, 794 N.Y.S.2d 81 ; Romero v. City of New York, 260 A.D.2d 461, 688 N.Y.S.2d 226 [1999] ). Here, it is uncontroverted that, as of July 17, 2013, the Civil Court had been informed that tenants' attorney had to start a criminal trial the next day and, therefore, the subject proceeding had been adjourned to August 5, 2013. On the adjourned date, Ms. Wright informed the court that tenants' attorney had called her and told her that he was on trial “at another court,” and could not “make it.” Tenants' attorney had also sent landlord's attorney a letter stating that “he would be unprepared to resume that day.” Inasmuch as Ms. Wright's request for an adjournment does not appear to have been a delaying tactic, tenants had yet to present their defense, and the need for an adjournment did not result from the failure to exercise due diligence, the Civil Court improvidently exercised its discretion in denying the adjournment request, despite the fact that tenants' attorney had failed to submit an affidavit of actual engagement.
Tenants' remaining contentions are not properly before this court on this limited appeal.
Accordingly, the final judgment is reversed and the matter is remitted to the Civil Court for a new trial.