Jewel of Asia, Inc. v Unique Affairs at Mansion Hill Corp.

[*1] Jewel of Asia, Inc. v Unique Affairs at Mansion Hill Corp. 2007 NY Slip Op 52490(U) [18 Misc 3d 1110(A)] Decided on December 31, 2007 Justice Court Of Town Of Ossining, Westchester County Connolly, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through January 7, 2008; it will not be published in the printed Official Reports.

Decided on December 31, 2007
Justice Court of Town of Ossining, Westchester County

Jewel of Asia, Inc., Jewel of Asia Realty Corp., Mahfil Corporation and Syed A. Nayeem, Petitioners,

against

Unique Affairs at Mansion Hill Corp., Respondent.



314/07



To:Evan Wiederkehr, Esq.

DELBELLO DONNELLAN WEINGARTEN

WISE & WIEDERKEHR, LLP

Attorneys for Petitioners

One North Lexington Avenue

White Plains, New York 10601

(914) 681-0200

Via Fax (914) 684-0288

Edward R. Hopkins, Esq.

KERN AUGUSTINE CONROY & SCHOPPMANN. P.C.

Attorneys for Respondent

420 Lakeville Road

Lake Success, New York 11042

(516) 326-1880

Via Fax (631) 360-3788

Francesca E. Connolly, J.

Petitioners/landlord, referred to collectively as "Jewel of Asia," commenced this non-payment proceeding to recover possession of commercial premises from respondent/tenant and a money judgment for rent arrears in the sum of $90,000.00, with interest from April 1, 2007, together with attorneys' fees, costs and disbursements. Respondent moves to dismiss the petition upon grounds that the Court lacks subject matter jurisdiction over the matter in that the proper party did not file the petition in accordance with RPAPL §721(1) and the petition is not properly verified. Petitioners oppose the motion upon grounds that the petitioner is the owner and landlord of the premises and therefore, is a proper party to commence a non-payment proceeding; and that respondent has waived any objection to the verification and captioned name of the petitioner by failing to raise the issue in the proceedings pending in Supreme Court between the same parties relating to the same leased premises. Petitioners cross-move for an Order directing respondent to remit rental arrears into escrow during the pendancy of this action.

For the reasons set forth herein, the respondent's motion to dismiss is denied. The Court reserves decision on petitioners' motion directing respondent to remit rental arrears pending the proceedings to be held on January 3, 2007.

PROCEDURAL AND FACTUAL BACKGROUND

This non-payment proceeding was commenced by petitioners, Jewel of Asia, Inc., Jewel of Asia Realty Corp., Mahfil Corporation and Syed A. Nayeem, as landlord, against respondent, Unique Affairs at Mansion Hill Corp., as tenant, seeking to recover possession of the [*2]leased commercial premises located at 25 Studio Hill Road, Briarcliff Manor, New York, based upon non-payment of rent in the sum of $90,000.00, plus interest since April 1, 2007, together with attorneys' fees, costs and disbursements. Although Jewel of Asia, Inc., Jewel of Asia Realty Corp., Mahfil Corporation and Syed A. Nayeem, are named as petitioners, the petition is brought in the name of Jewel of Asia Realty Corp., only, as owner of the premises and landlord to the respondent, and is verified by Syed Nayeem, as President of Jewel of Asia Realty Corp.

The petition was served upon respondent on November 27, 2007. The respondent served an answer to the petition on December 3, 2007, which contains a non-specific affirmative defense of improper verification. The parties appeared in Court on December 6, 2007, where the respondent raised specific objections to the verification of the petition, and moved to dismiss the petition based upon lack of subject matter jurisdiction. The Court gave the parties the opportunity to brief the issues and articulate their respective positions in writing.

Respondent moves to dismiss the petition upon grounds that the lease for the premises lists Jewel of Asia, Inc., as the landlord, and therefore, the petition is jurisdictionally defective pursuant to RPAPL §721(1) because Jewel of Asia Realty Corp. is not the named landlord in the lease. Petitioners oppose the motion upon grounds that the petitioner is the owner and landlord of the premises and therefore, is a proper party to commence a non-payment proceeding; and that respondent has waived any objection to the captioned name of the petitioner by failing to raise the issue in the proceedings pending in Supreme Court between the same parties relating to the same leased premises. Petitioners cross-move for an Order directing respondent to remit rental arrears into escrow during the pendancy of this action. Respondent objects to this request based upon the defense of partial actual eviction.

In support of their respective positions, the parties have submitted copies of affidavits of Syed Nayeem, as an officer and shareholder of Jewel of Asia Realty Corp. and Mahfil Corporation, and Guy DeMeo, as sole shareholder and owner of Unique Affairs, which were used in connection with the proceedings in Supreme Court. In addition, the parties have submitted a copy of the lease, the deed to the premises, and other documents as exhibits.

Based upon the submissions, the Court concludes that the premises, which are located in a residential zoned neighborhood, but are used as a catering and restaurant facility based upon a prior non-conforming use, have been owned by Jewel of Asia Realty Corp. since February 28, 2001. Mahfil Corporation was the corporate entity that operated the catering and restaurant business at the premises. Syed Nayeem is an officer and shareholder of both corporations.

The respondent/tenant entered into a lease agreement with petitioners/landlord commencing on January 1, 2006 and ending on December 31, 2015. The lease names Jewel of Asia, Inc., as the landlord, and is signed by Syed A. Nayeem, as President of Jewel of Asia, Inc. and Secretary of Mahfil Corporation.

Although the lease names Jewel of Asia, Inc. as the landlord, this was an inadvertent error, and the landlord was intended to be named as Jewel of Asia Realty Corp. Jewel of Asia, Inc. was never formed as a corporation or other business entity. The lease was signed by Syed Nayeem as an officer of Jewel of Asia and Mahfil Corporation. Respondent Unique Affairs has always dealt with Syed Nayeem as the landlord and refers to him as such.

Respondent Unique Affairs commenced an action in Supreme Court, Westchester County, as plaintiff, against petitioners, Jewel of Asia, Inc., Jewel of Asia Realty Corp., Mahfil Corporation and Syed A. Nayeem, as defendants, seeking a temporary restraining order and permanent injunction relating to the leased premises. This matter, which is presently pending in Supreme Court, involves the same parties and the same leased premises as the proceeding before this Court.

DISCUSSION/ANALYSIS

RPAPL §721 enumerates the classes of persons authorized to commence a summary proceeding to recover possession of real property. Where a tenant has defaulted in the payment of rent pursuant to a lease agreement, a summary proceeding may be commenced by the landlord or lessor. RPAPL §711(2); RPAPL §721(1). "[T]he courts have adopted a flexible approach regarding the description of a petitioner's interest, and an inflexible approach to issues that may somehow pertain to title or ownership." (Fame Company v. Sandberg, 9 Misc 3d 1115[A] [Civ. Ct. NY Co. 2005]). "[A]ny misstatement of exact ownership interest in the petition is amendable at trial or by motion." (Eleven Fifteen Joint Venture v. LIU Imports, Inc., 2000 WL 33952042 [Civ. Ct. NY Co. 2000]). Questions of title or ownership are not properly litigated in summary proceedings. (Ferber v. Salon Moderne, 174 Misc 2d 945, 946 [App.Term 1st Dept. 1997]).

Here, the respondent objects to the use of Jewel of Asia Realty Corp. as the name of the petitioner even though it is clear that this entity is the proper owner of the premises, and the name Jewel of Asia, Inc. was erroneously used in the lease.The respondent has not sought rescission of the lease and has remained in possession while withholding rent on the ground of actual partial eviction. "To the extent tenant is aggrieved by any misrepresentation of title in the [*3]lease, its remedy is in a plenary action." (Ferber v. Salon Moderne, supra , 174 Misc 2d at 946).

Jewel of Asia Realty Corp. is the owner of the premises and as such, has standing to commence the non-payment proceeding. In addition, respondent has acknowledged Jewel of Asia Realty Corp. and Syed Nayeem as the landlords in the proceeding commenced in the Supreme Court. The lease was signed by Syed Nayeem as an officer of Jewel of Asia and Mahfil Corporation. Respondent Unique Affairs has always dealt with Syed Nayeem as the landlord and refers to him as such. Respondent has not established any prejudice as the result of any inadvertent error or misstatement of the exact ownership interest in the petition and therefore, the Court's subject matter jurisdiction is not affected.

Respondent objects to the verification of the petition in that Dr. Nayeem does not state or verify his relationship to Jewel of Asia, Inc. or the relationship of Jewel of Asia, Inc. to the petitioner, and argues that this is a jurisdictional defect. The Court finds this argument to be without merit. A verification is merely part of a petition and shall be liberally construed. "[D]efects [in pleadings] shall be ignored if a substantial right of a party is not prejudiced. C.P.L.R §3026. Thus where a party submits a defectively verified pleading, courts should disregard minor defects or permit ample opportunity to correct deviations from the prescribed form . . . [since] [i]rregularities rarely result in prejudice to a party or affect the substance of the litigation." (SLG Graybar, L.L.C. v. John Hannaway Law Offices, 182 Misc 2d 217, 221 [Civ. Ct. NY Co. 1999]). "It is now well-settled that the failure to verify or properly verify a petition, even in a summary proceeding . . . does not deprive the court of subject matter jurisdiction and may not otherwise be deemed a jurisdictional defect." Id.

The Court finds that the petitioners' lack of reference to Jewel of Asia, Inc. in the petition to be a minor irregularity, which has not resulted in any prejudice to the respondent. Having named Jewel of Asia, Inc. and Jewel of Asia Realty Corp., along with the President, Syed Nayeem, in its Supreme Court action, respondent was fully aware that the parties were related to each other and to the subject premises. The inclusion of Jewel of Asia Realty Corp., the proper ownership entity, as the petitioner, despite the erroneous use of Jewel of Asia, Inc. as the name of the landlord in the lease does not deprive the court of subject matter jurisdiction and therefore, this matter shall proceed on its merits.

Moreover, the Court finds that respondent has waived any objection to the verification of the petition for failure to act with due diligence as required by CPLR §3022. When verification of a pleading is required by statute, and it is either unverified or defectively verified, the pleading may be treated "as a nullity" provided the party gives notice with due diligence to the attorney of the adverse party that he elects to do so. CPLR §3022. Due [*4]diligence has been held to mean "within twenty-four hours." (O'Neil v. Kasler, 53 AD2d 310 315 [4th Dept. 1976], citing Westchester Life v. Westchester Magazine Co., 85 NYS2d 34 [1948]). A party who waits longer before giving notice should be held to have waived the objection. (Id. citing Siegel, Practice Commentaries to CPLR Rule 3022, s C3022:2, Book 7B McKinney's Cons.L., p. 396.)

The notice must also specify the particular reasons the verification is considered defective. The notice may not merely state that the pleading is being returned because it is unverified or defectively verified; it must specify reasons. The law requires "that the notice should specify the particulars wherein the verification was defective," and if those particulars are not specified then the notice "is insufficient to justify the return of the pleading." (Treen Motors Corp. v. Van Pelt, 106 Misc. 357, [Sup.Ct. Kings Co.1919]).

Here, the petition was served upon respondent on November 27, 2007. The respondent served an answer to the petition on December 3, 2007, which contains a non-specific affirmative defense of improper verification. The parties appeared in Court on December 6, 2007, which is the first time that respondent raised specific objections to the verification of the petition. Under these facts, the Court finds that respondent waived any objection to the verification of the petition for failure to act with due diligence as required by CPLR §3022.

CONCLUSION

Respondent's motion to dismiss the petition is denied. The parties are scheduled to appear for trial on January 3, 2008. In light of the imminent trial date, the Court reserves decision on petitioners' motion directing respondent to remit rental arrears pending the proceedings.

The foregoing constitutes the Decision and Order of the Court.

Dated:December 31, 2007

________________________________

HON. FRANCESCA E. CONNOLLY [*5]

Town Justice