3308 Bronx, LLC v. Wilson , 2024 NY Slip Op 50756(U) ( 2024 )

3308 Bronx, LLC v Wilson (2024 NY Slip Op 50756(U)) [*1]

3308 Bronx, LLC v Wilson

2024 NY Slip Op 50756(U)

Decided on June 21, 2024

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This opinion is uncorrected and will not be published in the printed Official Reports.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 June 21, 2024

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Hagler, P.J., Tisch, James, JJ.
570126/24

3308 Bronx, LLC, Petitioner-Landlord-Appellant,

against

Merrick A. Wilson d/b/a Five Points Banquet Hall and XYZ Corp., Respondents-Tenants-Respondents.

Landlord appeals from an order of the Civil Court of the City of New York, Bronx County (Verena C. Powell, J.), entered February 26, 2024, which denied its motion to amend the petition nunc pro tunc in a holdover summary proceeding.

Per Curiam.

Order (Verena C. Powell, J.), entered February 26, 2024, affirmed, without costs.

Paragraph 5 of the commercial holdover petition described the premises from which removal is sought as "3308 Bronx LLC." Following tenant's default and an inquest, landlord moved to amend paragraph 5 nunc pro tunc to describe the premises as "3308 White Plains Road, Ground Floor, Bronx, NY 10467-5703."

Civil Court providently exercised its discretion in denying the motion. Although the failure to adequately describe the premises in the holdover petition, as required byRPAPL 741(3), does not deprive the Civil Court of subject matter jurisdiction (see 156 Nassau Ave. HDFC v Tchernitsky, 62 Misc 3d 140[A], 2019 NY Slip Op 50059[U] [App Term, 2nd Dept, 2d, 11th & 13th Jud Dists 2019]; Jackson v New York City Hous. Auth., 88 Misc 2d 121 [App Term, 1st Dept 1976]), we agree that the defective description of the premises in this case could not be corrected by a nunc pro tunc amendment of the plandletition (see US Airways, Inc. v Everything Yogurt Brands, Inc., 18 Misc 3d 136[A], 2008 NY Slip Op 50279[U] [App Term, 2nd Dept, 2d & 11th Jud Dists 2008]). The defect was substantial, not de minimus, and we cannot say that it did not materially mislead or confuse the tenant (cf. 307 W. 82nd St. Hous. Corp. v Zacharias, 59 Misc 3d 148[A], 2018 NY Slip Op 50785[U] [App Term, 1st Dept 2018]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: June 21, 2024