631 Edgecombe LP v Fajardo

[*1] 631 Edgecombe LP v Fajardo 2013 NY Slip Op 50779(U) Decided on May 16, 2013 Appellate Term, First 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 16, 2013
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Shulman, Hunter, Jr., JJ
570126/13.

631 Edgecombe LP, Petitioner-Landlord-Appellant, - -

against

Jacqueline Fajardo, Respondent-Tenant-Respondent.

Landlord appeals from an order of the Civil Court of the City of New York, New York County (Cheryl J. Gonzales, J.), dated July 27, 2012, which, at the close of landlord's case, dismissed the petition in a nonpayment summary proceeding.

Per Curiam.

Order (Cheryl J. Gonzales, J.) dated July 27, 2012, reversed, with $10 costs, petition reinstated, and matter remanded to Civil Court for a new trial.

This nonpayment summary proceeding should not have been dismissed at the close of landlord's case, there being no "deliberate misrepresentation" of the rent-stabilized status of the demised apartment premises (see Hughes v Lenox Hill Hosp., 226 AD2d 4, 18 [1996], lv dismissed in part and denied in part 90 NY2d 829 [1997]). The misstatement in the July 2010 nonpayment petition as to the regulatory status of the apartment appears to have resulted from the uncertainty then existing over the retroactive application of Roberts v Tishman Speyer Props., L.P., 13 NY3d 270 (2009)(see Gersten v 56 7th Ave., LLC, 88 AD3d 189, 196-197 [2011]), and cannot be ascribed to a venal motive (see 546 West 156th Street HDFC v Smalls, 43 AD3d 7, 11 [2007]). The pleading infirmity did not rise to the level of a jurisdictional defect (see New York City Hous. Auth. v Jackson, 88 Misc 2d 121 [1976]) and was correctable by amendment, particularly since, as the trial court itself noted, no prejudice or surprise would result from the amendment "because [tenant] continuously claimed from the outset that the apartment is subject to rent stabilization."

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concurI concurI concur
Decision Date: May 16, 2013