Opinion
Index No. 322763-2022
12-02-2022
Sajeel Ahmed, Petitioner, v. Erica Reid, AKIA BURRIS & "JOHN DOE" & "JANE DOE," Respondents.
For Petitioner: Ali and Bains PC For Respondent: Mobilization for Justice, Inc.
Unpublished Opinion
For Petitioner: Ali and Bains PC
For Respondent: Mobilization for Justice, Inc.
Shorab Ibrahim, J.
RECITATION, AS REQUIRED BY CPLR 2219(A), OF THE PAPERS CONSIDERED IN THE REVIEW OF THIS MOTION BY THE RESPONDENT [ERICA REID] TO DISMISS THE PROCEEDING: NYSCEF Documents # 8-23.
UPON THE FOREGOING CITED PAPERS, THE DECISION/ORDER IN THIS MOTIONS IS AS FOLLOWS:
RELEVANT FACTS AND PROCEDURAL POSTURE
For the purposes of the instant motion to dismiss the relevant facts are these: in this holdover proceeding, the predicate notice and the petition both refer to the premises as the "1st Flr." apartment. (see NYSCEF Doc. 1). It is undisputed that the respondent resides in the unit above the ground floor unit. Respondent argues that reference to the "1st Flr." without any further information, amounts to a misdescription requiring dismissal. Petitioner's position is that the description is correct because the subject unit has always been referred to as the first-floor apartment. (see NYSCEF Doc. 16 & 20). Respondent also seeks dismissal alleging that mailings to the "1st Flr." after substitute service were improper because respondent lives in the second-floor unit.
ANALYSIS
Every petition in a summary proceeding must describe the premises from which removal is sought. (RPAPL § 741(3)). The description of the premises must be accurate enough to allow the marshal, when executing the warrant of eviction, to locate the premises without additional information. (see Empire State Building Company, LLC v Progressive Catering Services, Inc., 2 Misc.3d 545, 547, 769 N.Y.S.2d 691 [Civ Ct, New York County 2003] (emphasis added); Bilkis v Trantham, 66 Misc.3d 1201 (A), *3, 2019 NY Slip Op 52087(U) [Civ Ct, Queens County 2019]; US Airways, Inc. v Everything Yogurt Brands, Inc., 18 Misc.3d 136 (A), *1, 2008 NY Slip Op 50279(U) [App Term, 2nd & 11th Jud Dists 2008]).
Descriptions that are vague and likely to cause confusion may require dismissal. (see Sixth St. Community Ctr, Inc. v Episcopal Social Services, 2008 NY Slip Op 51151(U), 19 Misc.3d 1143(A) [Civ Ct, New York County 2008]; Vornado Two Penn Prop., LLC v XLPC, Corp., 18 Misc.3d 1119 (A), 2008 NY Slip Op 50138(U) [Civ Ct, New York County 2008]). This is because a city Marshal, unfamiliar with the premises, must be assured they are executing a warrant of eviction at the right space. (see 272 Sherman, LLC v Vasquez, 4 Misc.3d 370, 372, 777 N.Y.S.2d 853 [Civ Ct, New York County 2004]).
To that end, a technically correct street address or a description mirroring a lease may not be sufficient. (see New York City Economic Dev't Corp. v Kings Action Group, Corp., 66 Misc.3d 1221 (A), *4, 2020 NY Slip Op. 50193(U) [Civ Ct, Kings County 2020]; Elul Realty Corp. v Java New York Ltd., 12 Misc.3d 336, 339, 816 N.Y.S.2d 885 [Civ Ct, Kings County 2006]). Common sense and the facts of this case makes this perfectly clear.
In Kings Action Group, Corp., the court noted that "the analysis is less about the actual wording of description but rather more so as to the words in functional relation to the physical building structure containing the leasehold premises." (id.). In other words, is the description of the property sought detailed enough so that the marshal can identify it without any other information?
Thus, while both the landlord and the tenant might agree [for argument's sake] that the subject apartment is known as the "first-floor" apartment, the description in the petition is still insufficient because a city Marshal will have no idea how the parties refer to the apartment. (see e.g. Elul Realty Corp. v Java New York Ltd., 12 Misc.3d at 338). In fact, it is more likely than not that a city Marshal would execute the warrant at the ground floor apartment [having no other information]. This is especially true since the subject apartment is one flight up, photos petitioner included in his submissions show the subject unit's door is unmarked, and petitioner's affidavit nowhere states that the unit is marked.
Here, the description is insufficiently detailed, even if the parties call the apartment the first-floor apartment. (see New York City Economic Development Corporation v Salmar Master Tenant, LLC, 64 Misc.3d 1222 (A), *3, 2019 NY Slip Op 51231(U) [Civ Ct, Kings County 2019]). A Marshal may (reasonably) believe that the ground floor apartment is the first-floor apartment and that the apartment above is the second-floor apartment; the alleged accuracy of the "1st flr." description is not enough. (see Vornado Two Penn Prop., LLC v XLPC, Corp., 18 Misc.3d 1119 (A) (correct address on the petition and diagram of the premises were too vague to locate the space)).
Petitioner's response that there is no risk that a Marshal would evict the ground floor occupant because the petitioner resides there and would simply inform the Marshal to go upstairs misses the entire point. This [plausible] scenario would require the Marshal to impermissibly obtain "information outside of the four corners of the petition." (New York City Dev't Corp. v Kings Action Group Corp., 66 Misc.3d 1221 (A), *4, 2020 NY Slip Op 50193(U) [Civ Ct, Kings County 2020]).
Of course, the petitioner might not be home at the time of eviction.
Petitioner should have, in the first instance, avoided any ambiguity by describing respondent's unit in more detail (e.g., "top floor aka first floor apartment" or "first floor apartment which is above the ground floor apartment"). Absent that, petitioner could have moved to amend the pleadings. (see Najjar v Cooper, 35 Misc.3d 129 (A), *1, 2012 NY Slip Op 50629(U) [App Term, 2nd Dept 2012] ("Civil Court properly denied tenant's motion to dismiss the petition and granted the branch of landlords' cross motion seeking leave to amend the petition to include the first floor in the description of the premises.") citing 191 Chrystie, LLC v Sonnier, 21 Misc.3d 144 (A), 2008 NY Slip Op 52513(U) [App Term, 1st Dept 2008] (misdescription amendable where tenant not materially misled, confused, or hindered in the preparation of his defense)).
The court notes that petitioner's counsel, when asked why he had not cross-moved to amend, requested time to do so. The application was denied as it was made at the end of oral argument on a fully briefed motion and only after the court's query. (see New York City Economic Development Corporation v Salmar Master Tenant, LLC, 64 Misc.3d 1222 (A), *3 ("as landlord has not moved to amend the petition, the only issue before this court is whether the respondent's motion should be granted due to the petition's insufficient description of the premises")). In any event, respondent served the motion to dismiss on October 20, 2022 and petitioner agreed to oppose by November 7, 2022. Any cross-motion should have been made before the original November 17, 2022 return date or no later than the November 29, 2022 adjourn date.
CONCLUSION
Based on the above, respondent's motion is granted, and the petition is dismissed. Judgment shall enter accordingly. The court does not reach respondent's improper service argument but notes that dismissal is inappropriate where there are issues of fact. Submissions here create an issue of fact of whether the top floor unit in which respondent resides is actually known as the "1st Flr." apartment. This determination necessarily requires a full factual hearing.
This constitutes the decision and order of the court. It will be posted on NYSCEF.
SO ORDERED.