Glorius v. Siegel, 2004 NY Slip Op 51378(U) (NY 9/15/2004)

• Court: New York Court of Appeals Court of Appeals
• Writing for the Court: Gerald Lebovits
• Citation: Glorius v. Siegel, 2004 NY Slip Op 51378(U) (NY 9/15/2004), 2004 NY Slip Op 51378, 76535/2004. (N.Y. Sep 15, 2004)
• Decision Date: 15 September 2004
• Docket Number: 76535/2004.
• Parties: ROSA GLORIUS, Petitioner, v. ANDREW R. SIEGEL, Respondent.

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2004 NY Slip Op 51378(U)

ROSA GLORIUS, Petitioner, v. ANDREW R. SIEGEL, Respondent.

76535/2004.

Civil Court of the City of New York, New York County.

Decided September 15, 2004.

Borah, Goldstein, Altschuler, Schwartz & Nahins, P.C. (Sabrina Krause and Tanisha K. Mills of counsel), New York City, for petitioner.

Law Offices of Jay Stuart Dankberg (Jay Stuart Dankberg of counsel), New York City, for respondent.

GERALD LEBOVITS, J.

Petitioner moves to dismiss respondent's objections in point of law, counterclaims, and affirmative defenses, for summary judgment. Petitioner's motion is granted in part and denied in part. Respondent counterclaims attorney fees and cross-moves to dismiss the proceeding or, in the alternative, to preclude petitioner from presenting at trial evidence that respondent requested in a request for a bill of particulars. Respondent's motion is denied.

Petitioner's motion to dismiss respondent's first, second, and fifth objections in point of law is granted. Respondent's first, second, and fifth objections in point of law focus on the notice of petition and urge the court to dismiss the proceeding due to six supposed jurisdictional defects. First, respondent claims that no official date of issue appears on the notice of petition as required by CPLR 304. Second, respondent points to the lack of an official stamp showing that a judge or the clerk of the court issued the notice of petition under the Civil Court Act § 401 (c). Third, respondent claims that the font in the notice of petition and the petition is smaller than CPLR 2101 (a) allows. Fourth, respondent claims that the language in the notice of petition is confusing. Fifth, respondent urges dismissal on the ground that the notice of petition fails to state the date of the lease agreement. Sixth, respondent includes an affirmative defense and requests that the court dismiss the petition because petitioner seeks security and electrical charges in addition to rent allegedly owed.

The notice of petition respondent supplied in his papers marks June 22, 2004, as the date of issue. It is also stamped bearing the name of the clerk of court as required by Civ. Ct. Act § 401 (c). But no signature stamp appears on the notice of petition with which respondent was served, and respondent states that this deprives the court of jurisdiction. To this end, respondent cites Werenteil v. Allman (23 HCR 322A [Civ Ct, NY County 1995, Dankberg, J.]), Marmac Bldg. & Holding Corp. v. Vassar Garage Corp. (124 Misc 2d 226, 228 [Mun Ct, NY County 1924]), and three unpublished opinions for the proposition that the petition should be dismissed for failure to serve a true or conformed copy of the notice of petition.

The cases respondent cites that the court is able to review (in other words, the published opinions) do not hold that the lack of a signature stamp from the clerk of court is alone a ground for dismissal. In Werenteil, the court dismissed for failure to serve a "true, conformed copy of a notice of petition issued by the clerk of court," but the lack of a signature stamp alone is not cited as a ground for the dismissal. In Marmac Bldg & Holding, the court dismissed the proceeding for several defects the court found vital to exercising its jurisdiction. (See 124 Misc at 228.) The defects included petitioner's failure to sign the verification, the lack of a date on the verification, and the clerk of court's not issuing the petition and notice of petition. (Id.) In dismissing the petition, the court in 1924 was concerned primarily with not condoning "careless preparation of papers." (Id.)

Courts no longer dismiss proceedings due to defects that result in no prejudice to either party. (See e.g. Barrows v. Rozansky, 111 AD2d 105, 107 [1st Dept 1985, mem] [finding that pleadings must be afforded fair and liberal construction]; Hochhauser v. Stewart, NYLJ, Apr. 20, 1992, at 30, col 1 [App Term 2d Dept, mem] [reversing dismissal of petition for failure to have signature from clerk of court]; Capital Newspapers Div., Hearst Corp. v. Vanderbilt, 44 Misc 2d 542, 543-544 [Sup Ct, Albany County 1964] [holding dismissal improper for failure to verify petition].) The lack of a signature stamp on a notice of petition that has an official stamp bearing the name of the clerk of court is not a defect so vital that dismissal is appropriate.

Petitioner's motion to dismiss respondent's first and fifth objection in point of law and first and second affirmative defenses is granted. Respondent's first and fifth objection in point of law and first and second affirmative defenses also request dismissal of the proceeding on the ground that the font size used in the notice of petition and the petition is too small. The font size of a particular document can be determined by taking out a ruler and referring to CPLR 105 (t), which provides that the letter of the document absent ascender or descender divided by .351 must be 45% of the font point required. (See Govenour Gardens Housing Corp. v. Lee, 2 Misc 3d 525, 526 [Hous Part, Civ Ct, NY County 2003].) In this case, CPLR 2101 (a) requires at least a 10-point font. The lower case letter "m" in the word "demand" on the notice of petition measures 2 mm. The lowercase letter "r" in the word "respondent" on the petition also measures 2 mm. The measurement of the letters divided by .351 equals 5.698, which satisfies the test in CPLR 105 (t) by being more than 45% of the required font size of 10-points.

Not including the date of the lease on the petition is not a jurisdictional defect requiring dismissal. (See Brusco v. Miller, NYLJ, Nov. 9, 1994, at 22, col 5 [Hous Part, Civ Ct, NY County].) The term "jurisdictional defect" is shorthand for a defect in the pleadings so egregious that dismissal is required, rather than allowing for amendment. (Katz Park Ave. v. Olden, 158 Misc 2d 541, 544 [Civ Ct, NY County 1993].) Petitioner directs the court's attention to Brusco v. Miller, a case directly on point, which held that failure to include the date of the lease in the petition is not a ground for dismissal. (NYLJ, Nov. 9, 1994, at 22, col 5 [noting that failure to include date of lease is an inconsequential and non-prejudicial defect].) The Brusco court found that because the petition stated the months for which rent was owed, the respondent was put on notice of the dates that were the subject of the proceeding. In this case, the petition also gave notice of the month, year, and the amount of rents sought for the rent that is the subject of this proceeding.

A notice of petition and petition must appraise respondents of the proceeding brought against them and give them notice of when, how, and where to respond to the allegations. (RPAPL 731 (2); CPLR 403 (a); Matter of Recycle v. Lacatena, 163 AD2d 693, 694 [3d Dept 1990]; Matter of Common Council of City of Gloversville v. Town Bd. of Town of Johnstown, 144 AD2d 90, 92 [3d Dept 1989, per curiam]; Montgomery Trading Co. v. Cho, 193 Misc 2d 468, 469 [Civ Ct, NY County 2002]; Chalfonte Realty Corp. v. Streator, Inc., 142 Misc 2d 501, 501-502 [Civ Ct, NY County 1989].) Specifically, respondent points to paragraph two of the petition, which states that "[r]espondent(s) Andrew R. Siegel is (are) tenant(s) in possession of said premises pursuant to a rental agreement in writing." (Answer at ¶ 21.) Despite respondent's claim that this language is "confusing," the pleadings adequately appraise him of what proceeding is being brought and about how, when, and where to answer.

Petitioner's motion to dismiss respondent's fifth affirmative defense is granted. Respondent's fifth affirmative defense requests dismissal because petitioner included claims for security and electrical charges in the petition. Respondent argues that petitioner cannot seek those charges in a summary proceeding for not paying rent. Petitioner has alleged that respondent offered the security as payment for rent owed. Petitioner avers that the electrical charges are "additional rent" according to the rider to the lease, which is annexed as Exhibit C to petitioner's notice of motion. The lease provides in paragraph 13 (C) that electrical charges are respondent's obligation if the condominium provides electricity for a separate, submetered charge. Respondent has not specifically denied petitioner's allegation that respondent offered the security as payment of rent owed for the month of April. Respondent argues only that the petition must be dismissed because petitioner is not legally entitled to security and electric in a nonpayment proceeding. Petitioner's allegations are sufficient to state a cause of action for electrical charges and security.

The demand for a bill of particulars was served by mail on June 30, 2004, and petitioner responded with its bill of particulars on July 28, 2004, well within the required time period. (CPLR 3204 [a] [allowing recipient of demand 30 days to respond].) The question, then, is whether petitioner's answers are responsive to the demand or, if they do not, then whether the failure to respond is willful. The demand includes six questions with subsections of each question. Respondent claims that petitioner failed to answer questions 1 (c), 4 (a), and 4 (b). Petitioner objected to the requests included in question 1 (c) with reasonable particularity, as required by CPLR 3042 (a). Question 4 (a) requested an explanation of the total amount sought in this proceeding, and petitioner's answer was responsive to the question. Question 4 (b) asked petitioner to "identify the basis upon which such sum of $16,367.11 is computed." Petitioner's response was that no mention of that sum is in the petition and that the sum is irrelevant to the proceeding. The court has inspected petitioner's papers; there is no mention of that sum. Petitioner could not answer this question, and her objection was proper.

Petitioner's motion to dismiss respondent's first, third, and fourth affirmative defenses...