Opinion
L & T 61422/19
12-12-2019
Stephen BILKIS as the Administrator of the Estate of Betty Trantham, Petitioner, v. Jerry TRANTHAM, Nicalia Bunsie, Respondents-Occupants, John Doe and Jane Doe, Respondents-Under occupants.
For Petitioner: Matthew J. Routh, Esq., Dustin Bowman, Esq., Shiryak, Bowman, Anderson, Gill & Kadochnikov LLP, 80-02 Kew Gardens Road, Suite 600, Kew Gardens, NY 11415 For Respondent: Ernie Mui, Esq., Queens Legal Services, 89-00 Sutphin Boulevard, 5th Floor, Jamaica, NY 11435
For Petitioner: Matthew J. Routh, Esq., Dustin Bowman, Esq., Shiryak, Bowman, Anderson, Gill & Kadochnikov LLP, 80-02 Kew Gardens Road, Suite 600, Kew Gardens, NY 11415
For Respondent: Ernie Mui, Esq., Queens Legal Services, 89-00 Sutphin Boulevard, 5th Floor, Jamaica, NY 11435
Clinton J. Guthrie, J.
Recitation, as required by CPLR § 2219(a), of the papers considered in the review of Respondent Jerry Trantham's motion to dismiss pursuant to CPLR § 3211(a)(2) and/or (a)(7), or, in the alternative, for leave to file an answer and counterclaims pursuant to CPLR §§ 2004 and 3012(d) and Petitioner's cross-motion to amend the Petition nunc pro tunc :
Papers Numbered
Notice of Motion & Affidavit/Affirmation/Exhibits Annexed 1
Notice of Cross-Motion & Affirmation/Affidavit/Exhibits Annexed 2
Opposition to Cross-Motion and Reply & Exhibit Annexed 3
Upon the foregoing cited papers, the decision and order on Respondent's motion to dismiss, or, in the alternative, for leave to file an answer and counterclaims and Petitioner's cross-motion to amend the Petition is as follows:
PROCEDURAL HISTORY
The immediate holdover proceeding was commenced by Notice of Petition and Petition dated May 20, 2019. The Petition alleges that Respondents Jerry Trantham and Nicalia Bunsie entered into possession of the premises without permission. On the initial court date, June 12, 2019, the proceeding was adjourned for Respondent Jerry Trantham to seek counsel through the Universal Access (UA) program. Prior to the next court date, July 17, 2019, Queens Legal Services appeared as counsel for Respondent. The proceeding was again adjourned on July 17th, to August 23, 2019. Prior to August 23rd, Respondent, through counsel, made a motion to dismiss, or, in the alternative, for leave to file an Answer and Counterclaims. Following additional adjournments, Petitioner made a cross-motion to amend the Petition and the parties, through counsel, submitted opposition and reply papers. The Court heard argument on both Respondent's motion and Petitioner's cross-motion on October 2, 2019 and reserved decision.
ANALYSIS
Petitioner's Cross
Motion to Amend the Petition
The Court first assesses Petitioner's cross-motion, as it addresses one of the main arguments in Respondent's motion to dismiss, namely that the Petition sets forth an inconsistent theory as to Respondent's interest in the premises. Petitioner seeks to amend the Petition so that it alleges that the named Respondents are licensees whose rights of occupancy have been terminated pursuant to a Notice to Quit (the Notice to Quit alleges the same). The Petition currently alleges that the named Respondent entered into possession without permission. Petitioner also seeks to amend the verification page of the Petition to specify that it is made by counsel because Petitioner is not present in the county or state where his (counsel's) office is located.
Respondent's motion to dismiss challenged the verification of the original Petition as being improper under CPLR § 3021. However, the objection to the verification was withdrawn at argument on the motion and cross-motion.
Pursuant to CPLR § 3025(b), "[a] party may amend his or her pleading ... at any time by leave of court or by stipulation of all parties. Leave shall be freely given upon such terms as may be just including granting of costs and continuances." See also TIA of NY, Inc. v. I.J. Litwak Realty 1, LLC , 142 AD3d 606, 607 (2d Dep't 2016) ("Leave to amend should be freely granted in the absence of prejudicial delay and where the proposed amendment is neither palpably improper nor patently devoid of merit.") (Internal citations omitted); 36 Main Realty Corp. v. Wang Law Off., PLLC , 49 Misc 3d 51, 53, 19 N.Y.S.3d 654, 657 (App. Term 2d, 11th & 13th Jud. Dists. 2015).
Respondent argues in opposition that because the requirement to state a respondent's interest in the premises and relationship to the petitioner (pursuant to Real Property Actions and Proceedings Law [RPAPL] § 741(2) ) is jurisdictional in nature, the Petition may not be amended at this juncture. For this proposition, Respondent cites to two Nassau County District Court decisions by Judge Scott Fairgrieve, Stanislaus v. Stanislaus , 61 Misc 3d 1213(A), 2018 NY Slip Op. 51489(U) (Dist. Ct. Nassau County 2018), and Potts v. Thomas , 58 Misc 3d 311, 66 N.Y.S.3d 410 (Dist. Ct. Nassau County 2017). In both cases, Judge Fairgrieve found that the notices served on the respondents misrepresented their interests in the premises and dismissed both proceedings (finding that the respondents' interests in the premises and relationship to the petitioners were jurisdictional requirements). However, the question of whether an improper description of the interests/relationship could be amended was not before Judge Fairgrieve in either case.
Respondent also cites to the Court's decision in EVBD LLC v. John Doe et al. , Index No. L & T 51426/19 (Civ. Ct. Queens County, Guthrie, J., Decided July 12, 2019). After vacatur of a default judgment and warrant, the Court dismissed the proceeding, finding that the patent inconsistency between the predicate notice (which alleged that respondents were licensees) and the Petition (which alleged that respondents were "tenants" who entered into possession without permission of the landlord) rendered them defective. In EVBD LLC , however, the petitioner did not move to amend the Petition.
Here, in the context of a motion to amend the Petition to correct a misdescription of Respondent's interest in the premises and relationship with Petitioner, the Court must reckon with Appellate Term, Second Department's general liberalization since Paikoff v. Harris , 185 Misc 2d 372, 713 N.Y.S.2d 109 (App. Term 2d Dep't 1999) with regard to the amendment of petitions in summary proceedings. In Paikoff , the Appellate Term noted that MSG Pomp Corp. v. Doe , 185 AD2d 798 (1st Dep't 1992) and Giannini v. Stuart , 6 AD2d 418 (1st Dep't 1958) (which required strict compliance with statutory pleading requirements) were not controlling in the Second Department and that, on the contrary, "[t]he Appellate Division, Second Department, has ruled that, in the absence of prejudice to a party, it is permissible to amend the pleadings in summary proceedings even with respect to misstatements of the rent-regulated status of the tenancy." 185 Misc 2d at 376, 713 N.Y.S.2d at 112. Subsequent to Paikoff , the Appellate Term held that misstatements about whether a unit was subject to the Loft Law were also subject to amendment in the absence of prejudice. See Corastor Holding Co., Inc. v. Mastny , 12 Misc 3d 13, 17, 816 N.Y.S.2d 817, 820 (App. Term 2d Dep't 2006). In following this appellate authority, the Court finds that Petitioner is entitled to amend its Petition to reflect the allegations in the Notice to Quit. Respondent does not allege any prejudice that would result from the amendment. Accordingly, Petitioner's cross-motion to amend the Petition nunc pro tunc is granted and the Amended Petition annexed as Petitioner's Exhibit 2 is deemed served and filed.
The Court nonetheless does not condone the drafting of pleadings that does not give proper attention to the allegations made therein and cautions Petitioner's attorneys (which also represented the petitioner in EVBD LLC ) that the immediate determination does not excuse them from exercising diligence in complying with CPLR § 2106 and 22 NYCRR § 130-1.1a going forward.
Respondent's Motion to Dismiss
I. Defective Petition
Respondent moves to dismiss on the basis that the Petition is defective and does not comport with RPAPL § 741(2) and (4), insofar as it does not state Respondent's interest in the premises and relationship to Petitioner. Without question, the Petition, which states that the named Respondents entered without permission, is contradicted by the Notice to Quit, which states that the named Respondents are licensees who entered with permission. In the absence of amendment, the Court would dismiss the proceeding on this basis. See EVBD LLC, supra ; see also Lilley v. Molina , 63 Misc 3d 155(A), 2019 NY Slip Op. 50815(U) (App. Term 2d, 11th & 13th Jud. Dists. 2019) ; Hecsomar Realty Corp. v. Camerena , 62 Misc 3d 143(A), 2019 NY Slip Op. 50115(U) (App. Term 1st Dep't 2019) ; Bathija v. Chaudhry , NYLJ, May 6, 1998, at 31, col 5 (App. Term 2d & 11th Jud. Dists. 1998). However, the Court has permitted Petitioner to amend its Petition to allege that Respondents are licensees. As amended, the Court does not find the Petition to be defective under RPAPL § 741(2) and (4) and declines to dismiss the proceeding on this basis. See Paikoff, supra .
II. Improper Description of Premises
Respondent also moves to dismiss on the basis that the Petition is defective insofar as the premises are improperly described. RPAPL § 741(3) requires that every petition shall "describe the premises from which removal is sought." Failure to properly describe the premises will result in dismissal of the Petition. See , e.g. , Clarke v. Wallace Oil Co. , 284 AD2d 492 (2d Dep't 2001) ; US Airways, Inc. v. Everything Yogurt Brands, Inc ., 18 Misc 3d 136(A), 859 N.Y.S.2d 899 (App. Term 2d Dep't 2008). To satisfy the requirement to describe the premises, "the petition must accurately describe the exact location of the premises in sufficient detail to allow a marshal executing a warrant to locate the premises in issue and effect an eviction without additional information." Sixth Street Community Center, Inc. v. Episcopal Social Services , 19 Misc 3d 1143(A), 867 N.Y.S.2d 20 (Civ. Ct. NY County 2008).
The Notice to Quit and Petition describe the premises as "150-29 Foch Boulevard, Basement and all common areas, including but not limited to the entire First Floor, Jamaica New York 11434." Respondent argues that the description is vague and confusing and asserts that any unnamed person (including Respondent's niece, who lives on the second floor) could be errantly evicted if occupying any common space in the building. Respondent acknowledges that he resides in the Basement in his affidavit and does not deny that he has use of common areas outside of the Basement.
Respondent's niece, Amy Trantham, is a respondent in a companion proceeding under Index No. L & T 61421/19 (Queens County), wherein Petitioner seeks possession of the Second Floor and all common areas including but limited to the First Floor.
Petitioner opposes the motion to dismiss and argues that the description in the premises is accurate and, indeed, essential for the marshal to carry out an eviction. Petitioner states in his Affidavit that all Respondents reside in the Basement and all common areas, including but not limited to the First Floor. Petitioner's counsel also argues that the reference to the second-floor occupant is a red herring and does not explain how the marshal would be unable to execute upon a warrant for this proceeding.
On a motion to dismiss pursuant to CPLR § 3211(a)(7), the pleading at issue is "to be liberally construed, accepting all facts as alleged in the pleading to be true and according the [petitioner] the benefit of every possible inference." Avgush v. Town of Yorktown , 303 AD2d 340, 341 (2d Dep't 2003). On the papers submitted, the Court does not find that the description of the premises in the Petition is improper as a matter of law. Respondent unambiguously resides in the Basement. He does not deny that he has access to the common areas. The issue of the First Floor being shared as a common area for both the Basement and Second Floor is a novel one but the Court does not find that the inclusion of the common areas in the description renders the Petition defective at this juncture. The ultimate determination of whether the premises is accurately described shall be made at a trial on the merits. Accordingly, Respondent's motion to dismiss is denied.
Motion for Leave to File an Answer and Counterclaims
In the alternative, Respondent seeks leave to file an Answer and Counterclaims pursuant to CPLR §§ 2004 and 3012(d). Pursuant to CPLR § 3012(d), "[u]pon the application of a party, the court may extend the time to appear or plead ... upon such terms as may be just and upon showing a reasonable excuse for delay or default." The Appellate Division, Second Department has held that the filing of a late answer will be permitted where there is "a lack of any prejudice to the [opposing party], the lack of any willfulness on the part of the [moving party], the existence of a potentially meritorious defense, and the public policy [favors] the resolution of cases on the merits." NYU-Hospital for Joint Diseases v. Praetorian Ins. Co. , 98 AD3d 1101, 1102 (2d Dep't 2012). Additionally, pursuant to CPLR § 2004, "[e]xcept where otherwise expressly prescribed by law, the court may extend the time fixed by any statue, rule or order for doing any act, upon such terms as may be just and upon good cause shown, whether the application for extension is made before or after the expiration of the time fixed."
Respondent, through counsel, has annexed a proposed Answer and Counterclaims to the moving papers, so there is no further delay that would be occasioned by the Court granting Respondent leave to file the pleading. Although Petitioner opposes the granting of leave to file the Answer and Counterclaim, its opposition is that Respondent does not proffer a reasonable excuse for the delay and a cursory objection that there is no meritorious defense. However, the standard is not the one that applies to motions to vacate default judgments under CPLR § 5015(a). The Court finds that Respondent has adequately demonstrated lack of willfulness and meritorious defenses and notes that Petitioner does not set forth any prejudice that would result from Respondent interposing an Answer and Counterclaims. As a result, the Court grants Respondent leave to file his Answer and Counterclaims; however, the Court hereby strikes Respondent's Third and Fifth Affirmative Defenses, which have been rendered moot by the amendment of the Petition. Respondent's Exhibit A (subject to the stricken Affirmative Defenses) is deemed served and filed. As the Petition is amended by this Order, Respondent shall be permitted to serve an amended Answer and Counterclaims within 10 days of service of the Decision/Order with notice of entry.
CONCLUSION
In accordance with the determinations made herein, it is hereby ORDERED that Respondent's motion to dismiss is denied; Petitioner's cross-motion to amend the Petition is granted; and Respondent's motion for leave to file an Answer and Counterclaims is granted. The proceeding will be restored to the Part A calendar on January 8, 2020 at 9:30 AM for trial.