Bosco v Merle

[*1] Bosco v Merle 2009 NY Slip Op 51630(U) [24 Misc 3d 139(A)] Decided on July 24, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 24, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., GOLIA and RIOS, JJ
2008-920 K C.

Nicholas J. Bosco a/k/a NICK BOSCO, Appellant,

against

Richard Merle and DIANE JACOBWITZ, JOHN DOE and JANE DOE, Respondents.

Appeal from an order of the Civil Court of the City of New York, Kings County (Inez Hoyos, J.), dated May 23, 2007. The order granted a motion by tenants Richard Merle and Diane Jacobwitz to dismiss the petition.

Order affirmed with $10 costs.

On November 14, 2006, landlord served an owner-use nonrenewal notice on tenants, bearing the date November 2, 2005. Thereafter, landlord commenced this holdover proceeding, alleging in the petition, which was verified by landlord's attorney, that landlord had served a nonrenewal notice dated November 11, 2006, a copy of which was "annexed hereto and made a part hereof." Annexed to the petition was a copy of a nonrenewal notice bearing the typewritten date of November 2, 2005 but altered in ink to read November 2, 2006. In moving to dismiss, tenants Richard Merle
and Diane Jacobowitz (sued herein as Diane Jacobwitz) submitted the notice bearing the November 2, 2005 date.

Ordinarily, a de minimis defect in a predicate notice or petition that does not confuse the tenants or hinder their defense is to be overlooked (Oxford Towers Co. v Leites, 41 AD3d 144 [2007]; Fa Wah Mgt., Inc. v Alvarrez, 18 Misc 3d 132[A], 2008 NY Slip Op 50086[U] [App Term, 2d & 11th Jud Dists 2008]). Here, however, the unexplained alteration of the date on the copy of the notice attached to the petition, when taken together with the misstatement in the petition as to the date, gives rise to an inference of misconduct designed to deceive the court. A petition tainted by such misconduct will be dismissed (see Hughes v Lenox Hill Hosp., 226 AD2d 4, 18 [1996]; 275 Linden Realty Corp. v Caraballa, 5 Misc 3d 32 [App Term, 2d & 11th Jud Dists 2007]; Kentpark Realty Corp. v Lasertone Corp., 3 Misc 3d 28 [2004]). Accordingly, the order granting the motion to dismiss is affirmed.

We reach no other issue.

Pesce, P.J., and Rios, J., concur.

Golia, J., dissents in a separate memorandum. [*2]
Golia, J., dissents and votes to reverse the order and deny tenants' motion to dismiss the petition.

Contrary to the holding by the majority, I do not find that the de minimis defects contained in landlord's papers create "an inference of misconduct designed to deceive the court." The only inference that arises from landlord's papers is that landlord's paper work is extraordinarily sloppy.

Landlord, in his holdover petition, refers to "the annexed Notice of Non-Renewal of lease, dated November 2, 2006 . . ." (emphasis added). However, in the very next sentence, landlord refers to "said Notice of Non-Renewal of Lease dated November 11, 2006 . . ." (emphasis added). In reality, the notice of nonrenewal was actually served on November 14, 2006 and contained the date of November 2, 2005, which was typewritten at the bottom of the document. In addition, the copy of this notice that was submitted to the court had the number "5" in 2005 crossed out and overwritten with the number "6". It is important to note that landlord did not submit a "reprinted" document in which he changed the number "5" in 2005 to number "6" in order to mislead the court, apparently the concern of the majority.

Nevertheless, the date for termination of the lease contained in the body of the notice was "properly" noted as February 28, 2007. This termination of lease date was correctly written in two separate places in the notice. Indeed, the notice was complete and adequately informed tenant of all the information required.

Further evidence of landlord's sloppy paperwork is the fact that the notice refers to landlord's daughter, Jenna Bosco, in two separate places using the pronoun "his."

There is no question but that the person who drafted landlord's papers did so in a sloppy and unprofessional manner, but to hold that such sloppiness is proof of misconduct is beyond the pale. This is especially true in light of landlord's total lack of guile or any attempt to hide these obvious discrepancies. The notice was received on or about November 14, 2006, and, therefore, the date of November 2, 2005 was clearly erroneous and not in the least confusing. Nor can it be said that the incorrect date or the references to landlord's daughter using a male pronoun were willful or done with the intent to mislead.

Indeed, tenants would not be prejudiced by this ruling and would have an opportunity, at trial, to closely examine the "bona fides" of this landlord's true intent. Clearly, the law provides ample remedies to the benefit of tenants in the event the apartment is obtained by wrongdoing.
Decision Date: July 24, 2009