Opinion
76428/2007.
Decided January 23, 2007.
Attorneys for Petitioner, by: Mark J. Schneider, Esq. Law Office of Jay Stuart Dankberg.
Attorneys for Respondent, by: Jay Stuart Dankberg, Esq.
Upon a reading of the foregoing cited papers on this motion and cross motion for summary judgment it is the decision and order of this court that the motion is partially granted, the First, Second and Third Objections in point of law and Affirmative defenses are dismissed. The cross motion is granted, the petition fails to accurately describe the premises sought to be recovered. This particular defect in the petition is non-amendable, therefore, the Notice of petition and petition are dismissed.
Petitioner moves this court for an order pursuant to CPLR § 3212 granting it summary judgment dismissing Respondent's five objections in point of law, its six affirmative defenses and one set-off as set forth in Respondent's answer. Respondent cross moves for an order pursuant to CPLR § 3212 granting it summary judgment dismissing the proceeding with prejudice.
This court agrees with petitioner that the First objection in point of law and First affirmative defense should be dismissed. There is no requirement in the RPAPL or the Uniform Court Rules ( 22 NYCRR 208.42) that petitioner's business address appear in the Notice of Petition and Petition. The Second and Third objections in point of law and Affirmative defenses likewise should be dismissed. Respondent has waived, by stipulation so ordered by the Hon. Arlene Bluth, all objections to service of the rent demand, notice of petition and petition. However, the court agrees with Respondent that the Petition fails to adequately describe the premises sought to be recovered in accordance with RPAPL § 741(3) and the applicable case law.
RPAPL § 741 (3) mandates that every petition contain a description of the premises from which removal is sought. The description must be accurate enough to allow the marshal, when executing the warrant of eviction to locate the premises without additional information (Empire State Building Company, LLC., v. Progressive Catering Services, Inc., 2 Misc 3d 545, 769 N.Y.S. 2d 691 [NY City Civ. Ct. 2003]). The description of the premises in the Petition is as follows:
"Two Penn Plaza, portion of the ground floor, (as identified by two crosshatched areas in Exhibit A annexed hereto) New York, New York 10121, which is situated within the territorial jurisdiction of the Civil Court of the City of New York, County of New York."
The court in Elul Realty Corp., v. Java New York LTD., 12 Misc 3d 336, 816 N.Y.S. 2d 885 [Civ. Ct. Kings 2006] found a similar description in the Petition to be fatally defective and dismissed the proceeding. In Elul, the petition was described as "Part of the Second Floor between building A B, at 14 Whale Square." The court found this description to be vague as to the exact location of the respondent's business and would cause the marshal to be confused as to which tenant is to be evicted.
Similarly here the description of the premises is vague as to the exact location of the premises to be recovered. Even the annexation of a diagram does not cure this defect. This court has examined the diagram annexed to the petition and has found it to be as confusing and vague as the description of the premises in the petition. Although Petitioner's counsel argues that the premises to be recovered are "two newsstands on both sides of the steps leading to the subject building as separated by the steps leading to the LIRR railroad station below", that is not the description in the Petition. Such description would be sufficient to describe the premises to be recovered as it is not vague and is accurate enough for the marshal to locate the premises. Unfortunately petitioner sought to describe the premises differently in the petition. This vagueness is not cured by the annexed diagram, which does not contain any reference to steps or the entrance to the LIRR railroad station. This diagram does not even indicate which cross streets or avenues this building or the premises to be recovered are located in. Therefore this court must find that the premises to be recovered are not accurately described in the petition.
The court notes that Petitioner is able to maintain this proceeding although it is seeking to recover possession of two separate premises under the same lease (see Hudson waterfront Associates, IV, L.P. v. MTP 59 St. LLC., 8 Misc 3d 136 (A), 803 N.Y.S. 2d 18 [App. Term 1st. Dept. 2005]; NRP LLC., II v. La Casa Elegante Corp., 180 Misc 2d 300, 689 N.Y.S. 2d 851 [App. Term 1st. Dept. 1999]).
Accordingly for the foregoing stated reasons the motion is partially granted, the cross motion is granted, the petition fails to accurately describe the premises sought to be recovered and the Notice of petition and petition are dismissed without prejudice.
This constitutes the decision and order of this court.