Oceana Apts. v. Spielman

Decision Date06 February 1995
Citation164 Misc.2d 98,623 N.Y.S.2d 724
PartiesOCEANA APTS., Petitioner/Plaintiff, v. Sam and Mary SPIELMAN, Respondents/Defendants.
CourtNew York City Court

Cohen, Hurkin, Ehrenfeld, Pomerantz and Tenenbaum, Brooklyn, for petitioner.

Elliot R. Marvin, Brooklyn, for respondents.

CARL O. CALLENDER, Judge.

Motion to dismiss denied at this time. Petitioner may make written application by motion to amend verification. $30.00 costs awarded to respondent.

I. Claim For Dismissal

The respondent moves to dismiss the petition for the following reasons:

1. The petition fails to have annexed to it the registration statement.

2. The verification in the petition fails to meet the requirements of 3021 of the CPLR in that the attorney verification failed to state why the verification was not made by the petitioner.

The petitioner admits the registration omissions brought out by the respondent but argues that such an omission should not result in a dismissal of the petition. The petitioner argues further that the verification is proper and if found to be improper was waived by the respondent because it was raised late.

II. Failure to Annex the Registration Statement

Section 27-2107(b) of the Housing Maintenance Code (New York City Administrative Code, Title 27, Chapter 2) makes the requirements about registration clear.

"In any action to recover possession under section seven hundred eleven of the real property actions and proceedings law, the owner shall set forth his or her registration number issued by the department, and shall allege that he or she has filed a statement of registration and shall annex a copy of the receipt of such registration to his or her petition."

The Housing Maintenance Code therefore requires petitioner to do the following in summary proceedings:

1. set forth the registration number issued by the Department of Housing Preservation and Development.

2. allege that a registration statement has been filed.

3. annex a copy of the registration receipt to the petition.

In the instant proceeding, the petitioner has provided the multiple dwelling registration number, and stated that there is a currently effective registration statement on file, but it has failed to attach a copy of the registration receipt as the Code requires.

The petitioner therefore has failed to comply with the requirements of section 27-2107(b) of the Housing Maintenance Code. The respondent therefore seeks the petition to be dismissed. The respondent cites a number of cases, but none that mandate a dismissal for failure to annex a registration receipt to the petition. The Court notes that the Court of Appeals case cited by the respondent has nothing to do with a failure to annex the required registration receipt. (See Blackgold Realty Corp. v. Milne, 69 N.Y.2d 719, 512 N.Y.S.2d 25, 504 N.E.2d 392 [Ct. of Appeals, 1987].) This Court found no cases that hold that the failure to annex the registration receipt as is required under the law constitutes a substantial defect that is sufficiently prejudicial to merit or mandate a dismissal of the petition. Rather, this Court believes it represents the kind of error that the Appellate Courts would find to be minor, nonprejudicial and therefore correctable. (See 150 West 26th Street Corp. v. Hall, NYLJ, Jan. 12, 1982, at 11, col. 1 [App. Term 1st Dept.]; and Phillips v. Mason, NYLJ, June 29, 1982, at 5, col. 1 [App. Term 1st Dept.]; and Jackson v. New York City Housing Authority, 88 Misc.2d 121, 387 N.Y.S.2d 38 [App.Term 1st Dept., 1976].)

III. Insufficient Verification and Waiver
A. Requirements of the Law

The Real Property Actions and Proceedings Law, Section 741 permits verification by an attorney pursuant to subdivision (d) of section 3020 of the CPLR. It also states that an attorney may verify the petition on information and belief even if the person is in the county where the attorney has his office.

Section 3020(d)(3) of the CPLR provides that the verification of a pleading shall be made by the affidavit of the party, except:

(1) If the party is not in the county where the attorney has his office; or

(2) If the action is founded upon a written instrument for the payment of money only which is in the possession of an agent or the attorney; or

(3) If all the material allegations of the pleading are within the personal knowledge of the attorney, the verification may be made by the attorney.

Section 3021 of the CPLR sets forth the required form of the affidavit of verification as follows:

1. It must indicate that the pleading is true to the knowledge of the deponent, except as to matters stated to be on information and belief.

2. With regard to those matters alleged to have been stated on information and belief, he or she believes it to be true.

3. If the verification is made by a person other than the party, he or she must indicate in the affidavit of verification the grounds of his belief as to all matters not stated upon his knowledge.

4. The deponent must also state the reason why the verification is not made by the party.

CPLR 3022 prescribes the remedy for defective verification. It indicates that a defectively verified pleading shall be treated as a nullity provided the recipient gives notice to the adverse party's attorney with due diligence. The Courts have defined due diligence to be within 24 hours after receipt of the pleading. (See State of New York v. McMahon, 78 Misc.2d 388, 356 N.Y.S.2d 933 [Sup.Ct., 1974]; and Lentlie v. Egan, 94 A.D.2d 839, 463 N.Y.S.2d 542 [App.Div., 3rd Dept., 1983], affirmed, 61 N.Y.2d 874, 474 N.Y.S.2d 467, 462 N.E.2d 1185 [Ct. of Appeals, 1984].)

B. Application of the Law
1. The Verification

The pleading in the instant case contains the following omission:

The verification fails to indicate why the verification was not made by the party.

2. The Waiver of the Defense

Accordingly, the respondent seeks the dismissal of the petition. The petitioner counters that the respondent took six weeks to make his motion to dismiss. He argues that this is substantially beyond the due diligence requirement and therefore constitutes waiver of the defense.

In view of the fact that the respondent appeared pro se and only very recently retained an attorney who raised the matter at his first appearance in this summary...

To continue reading

Request your trial
2 cases
  • Aviles v. Santana
    • United States
    • New York Civil Court
    • 5 July 2017
    ...Corp. v. Otero (157 Misc.2d 834, 836, 598 N.Y.S.2d 908, 910 [Civ Ct N.Y. Co 1993] ). See, e.g., Oceana Apartments v. Spielman (164 Misc.2d 98, 623 N.Y.S.2d 724 [Civ Ct Kings Co 1995] )(motion brought by counsel for previously unrepresented tenant challenging verification of the petition dee......
  • Aviles v. Santana
    • United States
    • New York Civil Court
    • 5 July 2017
    ...Fort Holding Corp v Otero (157 Misc 2d 834, 836, 598 NYS2d 908, 910 [Civ Ct NY Co 1993]). See, e.g., Oceana Apartments v Spielman (164 Misc 2d 98, 623 NYS2d 724 [Civ Ct Kings Co 1995])(motion brought by counsel for previously unrepresented tenant challenging verification of the petition dee......
5 books & journal articles
  • Table of Cases
    • United States
    • James Publishing Practical Law Books Archive New York Civil Practice Before Trial. Volume 2 - 2016 Contents
    • 18 August 2016
    ...§9:113 Ocean-Clear, Inc. v. Continental Cas. Co. , 91 AD2d 680, 457 NYS2d 431 (2d Dept 1982), §18:41 Oceana Apartments v. Spielman , 164 Misc2d 98, 623 NYS2d 724 (Civ Ct 1995), §15:141 Ocorr v. Lynn , 105 Misc 489, 173 NYS 518 (Sup Ct Monroe Co 1918), §17:90 Océ Business Services, Inc. v. C......
  • Table of Cases
    • United States
    • James Publishing Practical Law Books Archive New York Civil Practice Before Trial. Volume 2 - 2014 Contents
    • 18 August 2014
    ...§9:113 Ocean-Clear, Inc. v. Continental Cas. Co. , 91 AD2d 680, 457 NYS2d 431 (2d Dept 1982), §18:41 Oceana Apartments v. Spielman , 164 Misc2d 98, 623 NYS2d 724 (Civ Ct 1995), §15:141 Ocorr v. Lynn , 105 Misc 489, 173 NYS 518 (Sup Ct Monroe Co 1918), §17:90 Océ Business Services, Inc. v. C......
  • Pleadings
    • United States
    • James Publishing Practical Law Books Archive New York Civil Practice Before Trial. Volume 1 - 2016 Contents
    • 18 August 2016
    ...pleading was served, and counsel gave notice under CPLR 3022 promptly after being retained. [See Oceana Apartments v. Spielman , 164 Misc2d 98, 101-02, 623 NYS2d 724, 726-27 (Civ Ct 1995); Ft. Holding Corp. v. Otero , 157 Misc2d 834, 598 NYS2d 908 (Civ Ct NY Co 1993) (counsel gave notice wi......
  • Pleadings
    • United States
    • James Publishing Practical Law Books Archive New York Civil Practice Before Trial. Volume 1 - 2014 Contents
    • 18 August 2014
    ...pleading was served, and counsel gave notice under CPLR 3022 promptly after being retained. [See Oceana Apartments v. Spielman , 164 Misc2d 98, 101-02, 623 NYS2d 724, 726-27 (Civ Ct 1995); Ft. Holding Corp. v. Otero , 157 Misc2d 834, 598 NYS2d 908 (Civ Ct NY Co 1993) (counsel gave notice wi......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT