Papacostopulos v. Morrelli
| Decision Date | 07 February 1984 |
| Citation | 122 Misc.2d 938,472 N.Y.S.2d 284 |
| Parties | Yvonne PAPACOSTOPULOS, Petitioner, v. Anthony MORRELLI and Mary Ellen Morrelli, Respondents. |
| Court | New York City Court |
Joseph L. Maceda, Brooklyn, for petitioner.
Anthony and Mary Ellen Morelli, pro se.
Decision and Order
This is an ex parte application by petitioner to amend the address of the premises contained in the Thirty Day Notice, Notice of Petition and Petition herein from an incorrect to the correct address. Petitioner's attorney, contending that this change is "immaterial" since respondents had appeared in this action and entered into a Stipulation of Settlement, makes this request because the defective description has apparently prevented petitioner from obtaining a warrant of eviction.
For the following reasons, the application is denied and the Court, sua sponte, hereby dismisses this proceeding for lack of subject matter jurisdiction.
According to the court file, this holdover proceeding was commenced by petitioner in October, 1983 to recover possession of an apartment located at 7913 5th Avenue in Brooklyn, New York. 1 Although not in the court file, apparently the Thirty Day Notice which preceded this proceeding also described the location of the subject premises as 7913 5th Avenue, Brooklyn, N.Y. However, in his affidavit accompanying this application, petitioner's attorney states that the 7913 5th Avenue address was the result of "several typographical errors" and is incorrect. The correct address of the subject premises, he avers, is 7905 5th Avenue, Brooklyn, N.Y., the address at which respondents were served with the Thirty Day Notice, Notice of Petition and Petition.
The court file further reveals that respondents appeared in this proceeding pro se and signed a Stipulation of Settlement before a mediator in which they consented to entry of a final judgment of possession with a three (3) month stay of warrant of eviction. The stipulation also provided for the payment of use and occupancy during the stay period.
According to the affidavit in support of this ex parte application, respondents failed to pay the agreed upon use and occupancy. Accordingly petitioner moved to accelerate the issuance of the warrant. That motion was granted on default by another judge. However, as noted earlier, petitioner has been unable to obtain a warrant
because of the defective description contained in the pleadings which underlie this proceeding and, therefore, has made the instant application.
In order to confer jurisdiction upon the Court in a summary proceeding, a petition must contain a proper description of the subject premises. Village of Woodridge v. Proyect, 18 Misc.2d 623, 189 N.Y.S.2d 258 (Sullivan Cty.Ct., 1959); RPAPL § 741(3). Rather than being "immaterial", as claimed by petitioner, a defective description deprives the Court of subject matter jurisdiction because "it affects the very essence of the proceeding." Rasch,N.Y.Landlord & Tenant, § 1257, p. 63. This fact is demonstrated by petitioner's dilemma here, namely, that as a result of the defective description contained in the pleadings, a Marshal would be unable to determine the proper premises against which to execute the warrant of eviction.
An accurate description of the subject premises is so fundamental to a summary proceeding that courts have found petitions containing an incorrect description insufficient to confer jurisdiction even when a tenant failed to object on that ground and went to trial on the merits. Campbell v. Mallory, 22 How.Pr. 183 (Yates Co., 1861); Potter v. N.Y.C. Baptist Mission Soc., 23 Misc. 671, 52 N.Y.S. 294 (App.Term., 1898). These rules apply with equal force to this proceeding.
Respondents' original appearance did not, and cannot, confer the necessary jurisdiction. Subject matter jurisdiction cannot be conferred on the Court by consent or agreement. Robinson v. Oceanic Steam Nav. Co., 112 N.Y. 315, 19 N.E. 625 (1889); Kleinstein v. Gonsky, 134 A.D. 266, 118 N.Y.S. 949 (2nd Dept., 1909). Further, an objection based on lack of subject matter jurisdiction may be raised at any time during the proceedings, even on appeal. Matter of Walker, 136 N.Y. 20, 32 N.E. 633 (1892). A Court always has inherent power to vacate, set aside or modify its judgment, particularly where, as here, "the matter ... is not a mere irregularity, it is a fundamental error of substance affecting the power to proceed at all." In Matter of the City of Buffalo, 78 N.Y. 362 (1879); 2 Carmody--Wait 2nd § 147. The nature of petitioner's application forced the Court to examine its own power. Since the Court plainly never had jurisdiction of the subject matter of this proceeding in the first instance, the application must be denied, the judgment herein vacated, and the proceeding dismissed.
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