Opinion
51738/08.
Decided on June 9, 2008.
Josh B. Rosenblum, Esq. Rubel, Rosenblum Bianco, LLP, Merrick Rd, Rockville Centre NY, Attorney for Petitioner.
Gregory C. Soumas, Esq., Borah, Goldstein, Altschuler, Nahins Goidel, P.C., Broadway New York NY, Attorney for Respondent.
This is a commercial nonpayment summary proceeding. A trial on petitioner's prima facie case was held before the undersigned. After petitioner rested, respondent made an oral motion to dismiss the petition, contending that the petition's description of the premises failed to comply with the requirements of RPAPL 741(3). Petitioner opposed the motion and cross-moved over objection to amend the petition.
The undisputed material facts are as follows. Respondent entered into a written lease agreement with petitioner for commercial premises located in a portion of a three-story building at 638 East Sixth Street in Manhattan. The demised premises consisted of rooms on the first floor and storage space in the basement. The lease for the tenancy, which commenced on February 12, 2007, provided that respondent would pay rent in the amount of $5,000.00 per month.
Petitioner commenced this summary proceeding by filing a nonpayment petition on January 11, 2008, contending that respondent was in default and owed the sum of $36,350.28. The petition describes the premises simply as "all rooms in building known as 638 EAST 6TH STREET." (Petition, para. 5.) Subsequently, respondent filed a verified answer raising five affirmative defenses and one counterclaim. Respondent waived its first and second affirmative defenses with prejudice in a so-ordered stipulation dated March 31, 2008.
Respondent contends that the petition must be dismissed on the grounds that it is "jurisdictionally defective." Specifically, respondent asserts that the petition does not contain an adequate description of the premises within the meaning of RPAPL 741(3).
In opposition, petitioner contends that the description of the premises in the petition is sufficient. Petitioner points out that respondent neither filed a motion to dismiss, nor objected to the description in any other manner, prior to the trial. Furthermore, petitioner contends that respondent vacated the premises at some point after the petition was filed and served. Hence, petitioner is now seeking only a money judgment, and there is no need to locate the premises to effect an eviction.
Discussion
Under RPAPL 741(3), every petition in a summary proceeding to recover possession of real property must contain an adequate description of the premises from which removal is sought ( MSG Pomp Corp. v. Doe, 185 AD2d 798, 800 [1st Dep't 1992]; Clarke v. Wallace Oil Co., 284 AD2d 492 [ 284 AD2d 492, 493 [2d Dep't 2001]). To satisfy the statutory requirement, 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 ( Empire State Building Co., LLC v. Progressive Catering Services, Inc., 2 Misc 3d 545, 547 [Civ. Ct. N.Y.C., NY Co., 2003]; Vornado Two Penn Property, LLC v. XLPC, Corp., 18 Misc 3d 1119(A) [Civ. Ct. N.Y.C., NY Co., 2008]).
Our careful review of the case law suggests that the address of the premises, without more information, is generally not a sufficient description. As the cases cited above reflect, the description of the premises must not be vague, ambiguous nor inaccurate. Even in instances where the description of the demised premises matches the lease verbatim, courts have found the description to be inadequate.
For example, in Elul Realty Corp. v. Java New York Ltd., 12 Misc 3d 336 [Civ. Ct. N.Y.C., Kings Co. 2006], the court granted respondent's motion to dismiss based upon a defective description of the premises. The court wrote:
Petitioner has not cited any cases for the proposition that a description of a subject premises is always legally sufficient for a summary proceeding pursuant to RPAPL section 741(3) as long as it mirrors the description in the lease. The court finds that even though the petition reflects the exact words listed in the lease, the description of the subject premises leaves it unclear as to the exact location of the respondent's business.
The court also notes that the petition was not accompanied by a diagram or plans of the floor showing where the respondent is located on the second floor. Therefore the description by itself without more information is legally insufficient to comply with RPAPL 741(3).
Since an accurate description of the subject premises is fundamental to a summary proceeding, failure to comply with the statutes governing summary proceedings renders the petition defective.
Elul, 12 Misc 3d at 338-9 (citations omitted).
Likewise, the petition in the instant matter is clearly inadequate. The description of the premises is nothing more than the street address of the building as it appears in the lease agreement. No plan or diagram of any sort that would help identify the precise location of the premises is attached to the petition. Moreover, two of petitioner's exhibits reflect that the demised premises do not occupy the entire building, but only 1,235 square feet consisting of three rooms on the first floor, a hallway, and 100 square feet of storage space in the basement (Petitioner's 4 and 8 in evidence.] By contrast, the petition erroneously describes the premises as "all rooms in the building." In light of these serious shortcomings, the Court finds that the petition fails to comply with the statutory requirements.
Turning to the cross-motion, petitioner contends that if the description is deficient, nevertheless the petition should not be dismissed. Rather, petitioner asserts that it should be permitted to amend or otherwise correct the petition.
Petitioner seeks to rely on 500 Lincoln LLC v. Tunnel Self Storage LLC, 6 Misc 3d 128(A) [App. Term, 1st Dep't 2005], in support of amending the petition in the instant matter. In 500 Lincoln, the Appellate Term held that "any infirmity in the petition's description of the demised commercial premises is correctable by amendment and does not rise to the level of a jurisdictional defect."
We believe that petitioner's reliance on the case is misplaced for two reasons. First, nowhere does the judicial opinion quote the petition's description of the premises, so it is impossible for this Court to determine whether the petition in the present proceeding contains similar language. Second, the court in 500 Lincoln apparently concluded that the problem with the description was of a de minimus or trivial nature in light of the court's finding that the infirmity did not "rise to the level of a jurisdictional defect." By contrast, we find that the misdescription of the premises in the instant matter rises to a level that is non-amendable.
New York courts have consistently held that a defective description "affects the very essence of the proceeding" ( Papacostopulos v. Morrelli, 122 Misc 2d 938, 939 [Civ.Ct. N.Y.C., Kings Co., 1984], quoting Rasch, NY Landlord Tenant Summary Proceedings, section 1257, p. 64). The rationale behind the rule was summarized in MSG Pomp Corp. v. Doe, supra., where the First Department wrote:
On review of landlord-tenant proceedings, this court has uniformly applied the rule that the failure strictly to comply with the statutes governing summary proceedings deprives the court of jurisdiction and mandates dismissal. "A summary proceeding is a special proceeding governed entirely by statute and it is well established that there must be strict compliance with the statutory requirements to give the court jurisdiction.'"
MSG, 185 AD2d at 799-800 (citations omitted).
Some courts have held that an insufficient description deprives the court of subject matter jurisdiction. However, we believe the better view is set forth in U.S. Airways, Inc. v. Everything Yogurt Brands, Inc., 18 Misc 3d 136(A) [App. Term, 2d and 11th Jud. Dists., 2008]. There, the court stated:
RPAPL 741(3) requires that the petition "describe the premises from which removal is sought." While the Civil Court properly held that a landlord's failure to adequately describe the premises in the petition does not deprive the court of subject matter jurisdiction, such a failure is nevertheless grounds for dismissal of the petition.
. . .
Here, the description in the petition was wholly inadequate to allow the marshal to identify the premises sought to be recovered. Contrary to landlord's contention, the petition cannot be "deemed amended."
U.S. Airways, 18 Misc 3d at 136(A) (citations omitted).
For the above reasons, respondent's motion to dismiss is granted, petitioner's cross-motion to amend is denied, and the petition is hereby dismissed without prejudice.
The foregoing constitutes the decision and order of the court.