M.C.E. Corp. v Xavier

[*1] M.C.E. Corp. v Xavier 2012 NY Slip Op 52122(U) Decided on November 15, 2012 District Court Of Nassau County, First District Fairgrieve, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 15, 2012
District Court of Nassau County, First District

M.C.E. Corp., Petitioner,

against

Cali Xavier A/K/A CALI JAVIER, Respondent.



LT-003856-12



REPRESENTATION:

Wolfson & Grossman, LLP, Attorney for Petitioner, 1600 Stewart Avenue, Suite 603, Westbury, New York 11590, 516-745-8000; The Law Offices of Perry Ian Tischler, P.C., Attorney for Respondent, 38-39 Bell Boulevard, Suite 203, Bayside, New York 11361, 718-229-5390.

Scott Fairgrieve, J.

The following named papers numbered 1 to 3

submitted on this Motion

on October 19, 2012

papers numbered

Notice of Motion and Supporting Documents1Order to Show Cause and Supporting Documents

Opposition to Motion2

Reply Papers to Motion3

Petitioner moves pursuant to CPLR § 3025 to amend paragraph No.8 of the Petition to read "four (4) family multiple dwelling" instead of the premises being described as commercial. Respondent opposes the application.

Pursuant to CPLR section 3025, this court grants the Petitioner's leave to amend paragraph eight (8) of the non-payment petition in this action by substituting the words to read "four (4) family multiple dwelling" instead and in the place of the presently recited word "commercial."

In Rasch's Landlord and Tenant (4th ed), vol. 3 Section 41:36 entitled "Power of Amendment" states: § 2001 of the Civil Practice Law and Rules provides that at any stage of an action, the court may permit a mistake, omission, defect, or irregularity to be corrected, upon such terms as may be just, or if a substantial right of [*2]a party is not prejudiced, the mistake, omission, defect or irregularity shall be disregarded. Subdivision f of § 2101of the Civil Practice Law and Rules further provides that a defect in the form of a paper, if a substantial right of a party is not prejudiced,shall be disregarded by the court, and leave to correct shall be freely given.

Petitions in summary proceedings are analogous to pleadings in any other type of civil action and are held to be equally amendable. Siedlecki v. Doscher, 33 Misc 3d 18, 19, 931 N.Y.S.2d 203, 204 (App. Term 2011). The court stated in Siedlecki that the Appellate Division in the Second Department has rejected the "strict compliance" approach to jurisdiction in summary proceedings, and has stated that summary proceedings are to be treated like other civil actions. Id.

Furthermore in Jackson v. New York City Housing Authority, the court held, "A petition in a summary proceed in New York City Housing Authority is no different than a pleading in any other type of civil case. A petition which may fail to state facts sufficient to constitute a cause of action or contains other pleading infirmities is capable of correction by amendment. Such a petition does not render the proceeding jurisdictionally defective." Jackson v. New York City Housing Authority, 88 Misc 2d 121, 122, 387 N.Y.S.2d 38, 39 (App. Term 1976).

Conclusion

Thus, the motion to amend is granted as described herein.

So Ordered:

/s/ Hon. Scott Fairgrieve

DISTRICT COURT JUDGE

Dated:November 15, 2012

cc:Wolfson & Grossman, LLP

Law Offices of Perry Ian Tischler, P.C.