Arthur v Addan

[*1] Arthur v Addan 2008 NY Slip Op 52421(U) [21 Misc 3d 1138(A)] Decided on July 28, 2008 Just Ct Of Town Of Geneva, Ontario County Venuti, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 28, 2008
Just Ct of Town of Geneva, Ontario County

Charles Arthur, Petitioner,

against

Connie Addan, Respondent.



xx/08

Mark A. Venuti, J.

This petition was first called in court on July 21, 2008, at which time the respondent, by her attorney, Martha Alice Roberts of Legal Assistance of the Finger Lakes, filed and served a Motion to Dismiss and Verified Answer with Affirmative Defense. After briefly discussing the case, the court adjourned it for one week to allow the petitioner and the court time to review the respondent's motion papers, and to allow the court and respondent time to review other relevant documents, like the lease, submitted by the petitioner, also that day.

The respondent's counsel then submitted a letter of argument to supplement the second argument made in the motion to dismiss, challenging the validity of this holdover proceeding, with attached legal authority, dated July 24, and received by the court on July 25. The letter states a copy was also forwarded to the petitioner, but when the parties appeared in court on July 28, 2008, the petitioner stated he had not received this supplemental argument. Counsel stated it was mailed on July 24 to petitioner's post office box, which is the only address for the petitioner on any papers submitted by the petitioner. The court asked the petitioner if he would like some time to review the supplemental argument, or if he would like an adjournment, but the petitioner ultimately wished to proceed without further delay.

The respondent's first ground for dismissal is that the petitioner's name is misspelled on the petition and other documents, i.e., her surname is Abban, not Addan. This tenancy is based on a written lease for one year, commencing on November 1, 2007, on which the tenant's name is mistakenly printed Addan, but on which she signed Abban. The respondent cited two cases in support of the argument that this mistake is fatal to the petition, ABKCO Industries, Inc. v. Lennon, 52 AD2d 435 (1st Dept. 1976) and First Federal Sav. and Loan Ass'n of Rochester v. Souto, 158 Misc 2d 219 (NY City Ct. 1993), but in those cases the plaintiffs used a fictitious name and omitted a party's name when they had knowledge of the party's name, and the court finds them inapplicable to this case, and that misspelling the respondent's name under the circumstances of this case does not justify dismissal of the petition.

The respondent's second argument, that a summary holdover eviction proceeding cannot be maintained unless the tenant remains in possession beyond the expiration of the tenant's term, or unless the proceeding is based on the expiration of a conditional limitation in the lease that has been activated and expired, and also that the 30-Day Notice to Terminate Tenancy and the Petition that was filed fail to set forth any basis for terminating the tenancy, is supported by the [*2]applicable law, and the motion to dismiss is granted on those grounds and based on the cases and other authority cited by respondent's counsel in the July 24, 2008 letter of argument.

July 28, 2008__________________________________

Mark A. Venuti, Justice