US Airways, Inc. v Everything Yogurt Brands, Inc. (2008 NY Slip Op 50279(U))

US Airways, Inc. v Everything Yogurt Brands, Inc.

2008 NY Slip Op 50279(U) [18 Misc 3d 136(A)]

Decided on February 6, 2008

Appellate Term, Second 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This opinion is uncorrected and will not be published in the printed Official Reports.

US Airways, Inc., Respondent,

against

Everything Yogurt Brands, Inc., E. YOGURT CONCEPTS OF AMERICA INC., VILLA ENTERPRISES, INC., VILLA ENTERPRISES II, INC., VILLA ENTERPRISES LTD. and VILLA ENTERPRISES HOLDING CORP., Tenants, -and- P & J LAGUARDIA ENTERPRISES, INC., Appellant, -and- GREENLEAF GRILL, GREENLEAF'S, EVERYTHING YOGURT EXPRESS, TACO EXPRESS, TREAT STREET and "JOHN DOE #1-JOHN DOE #5", Undertenants.

Appeal from (1) an order of the Civil Court of the City of New York, Queens County (Anna Culley, J.), dated September 22, 2006, and (2) a final judgment of said court (Kevin [*2]Kerrigan, J.), entered October 5, 2006. The order denied a motion by

appellant P & J LaGuardia Enterprises, Inc. for summary judgment dismissing the
petition as against it. The final judgment, after a nonjury trial, awarded possession to landlord as against appellant P & J LaGuardia Enterprises, Inc., in a holdover summary proceeding.

Final judgment reversed without costs, order denying the motion by P & J LaGuardia Enterprises, Inc. for summary judgment vacated and motion by P & J LaGuardia Enterprises, Inc. for summary judgment dismissing the petition as against it granted.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of the final judgment (see Matter of Aho, 39 NY2d 241, 248 [1976]). The appeal from the final judgment brings the order up for review (CPLR 5501 [a] [1]).

The petition in this holdover proceeding describes the premises as "the concession area located at US Airways Terminal at LaGuardia Airport. . . ." In moving for summary judgment on the ground that the petition's description of the premises was inadequate, appellant P & J LaGuardia Enterprises, Inc. established that it occupies six different restaurants and kiosks in four widely separated locations within the US Airways building. One of the locations is in the upper level of the US Airways shuttle terminal, one in the lower level thereof, one in the upper level of the portion of the US Airways terminal offering regularly scheduled flights and one in the lower level thereof. The court below denied appellant's motion for summary judgment, ruling that the defect in the petition did not deprive the court of subject matter jurisdiction and that appellant had failed to show that the description was insufficient to allow the marshal to locate the premises. Following trial, a final judgment of possession was awarded to landlord.

RPAPL 741 (3) requires that the petition "describe the premises from which removal is sought." While the Civil Court properly held that a landlord's failure to adequately describe the premises in the petition does not deprive the court of subject matter jurisdiction (see Lacks v Lacks, 41 NY2d 71, 75 [1976]; Villa of Forest Hills v Lumberger, 128 AD2d 701, 702 [1987]; Lanz v Lifrieri, 104 AD2d 400, 401 [1984]; Birchwood Towers No. 2 Assoc. v Schwartz, 98 AD2d 699 [1983]; 17th Holding LLC v Rivera, 195 Misc 2d 531, 532 [App Term, 2d & 11th Jud Dists 2002]; Little Ferry Assoc. v Diaz, NYLJ, Jan. 12, 1981 [App Term, 1st Dept] ["A summary proceeding is not jurisdictionally defective so long as the court ha(s) jurisdiction over the subject matter in accordance with RPAPL article 7 and jurisdiction over the person of the respondent by dint of proper service"]; but see Clarke v Wallace Oil Co., 284 AD2d 492 [2001]), such a failure is nevertheless grounds for dismissal of the petition (see City of New York v Mortel, 161 Misc 2d 681 [App Term, 2d & 11th Jud Dists 1994], affg 156 Misc 2d 305 [1992]; Marrit Investors, Ltd. v Consolidated Marine Corp., NYLJ, Oct. 12, 1994 [App Term, 9th & 10th Jud Dists]; Elul Realty Corp. v Java New York Ltd., 12 Misc 3d 336 [2006], and cases cited therein). It is well settled that "the petition must contain a proper description of the premises involved, so that they may be identified properly and with certainty. Clearly, if the warrant is to be executed properly, the premises must be identified properly, and with certainty, so that the officer executing the warrant will be enabled to locate the premises from such description" (3 Dolan, Rasch's Landlord and Tenant — Summary Proceedings § 41:14, at 25 [4th ed]). Here, the description in the petition was wholly inadequate to allow the marshal to identify the premises [*3]sought to
be recovered. Contrary to landlord's contention, the petition cannot be "deemed amended." Accordingly, appellant's motion for summary judgment should have been granted.