Grambro Realty Corp. v Magnotta

[*1] Grambro Realty Corp. v Magnotta 2009 NY Slip Op 51021(U) [23 Misc 3d 141(A)] Decided on May 22, 2009 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 22, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., TANENBAUM and SCHEINKMAN, JJ
2006-1822 W C.

Grambro Realty Corp., Respondent,

against

Dennis Magnotta and Sandra Magnotta, d/b/a Alfonso Shoes, Appellants.

Appeal from a decision of the City Court of Mount Vernon, Westchester County (William Edwards, J.), dated October 11, 2006, deemed from a final judgment of the same court entered October 18, 2006 (see CPLR 5520 [c]). The final judgment, after a nonjury trial, awarded possession to landlord in a holdover summary proceeding.

Final judgment affirmed without costs.

In this commercial holdover proceeding, tenants' only argument on appeal is that landlord failed to name or serve the "true tenant," a corporate entity. However, the lease named the tenant as Alfonso Shoes, and the City Court properly found that tenants failed to produce any credible evidence that the alleged corporate entity existed and that it was the true tenant. Even if tenants had established that the true tenant was a corporate entity, the mistake would have been freely amendable in the circumstances presented (see e.g. Creative Cabinet Corp. of Am. v Future Visions Computer Store, 140 AD2d 483 [1988]). We note that tenants, who claim that they are the corporate officers, were served and knew that their business was the party against which the eviction was proceeding, and could not possibly have been misled as to whom the landlord was seeking to evict (see e.g. Cutting Edge v Santora, 4 AD3d 867 [2004]; Kurz v Casey, 81 AD2d 634 [1981]). [*2]

Accordingly, we affirm the final judgment.

Rudolph, P.J., Tanenbaum and Scheinkman, JJ., concur.
Decision Date: May 22, 2009