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 [*2]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 (124 Misc 2d 226, 228 [Mun Ct, NY County 1924]), and three unpublished opinions for the proposition that the petition should be dismissed for failure to serve a true or conformed copy of the notice of petition.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 [*3]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 [*4]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 and third and fourth objections in point of law is granted. Respondent's first, third, and fourth affirmative defenses and third and fourth objections in point of law ask the court to dismiss the proceeding for improper service of the petition, notice of petition, and rent demand. Respondent did not assert the allegations of improper service in a sworn affidavit included in his answer as required by CPLR 3020. The proper method of requesting a traverse hearing is for a respondent (a person with knowledge) to a submit sworn allegations to contest proper service. (See e.g. Walkes v Benoit, 257 AD2d 508, 508 [1st Dept 1999, mem].) Without an affidavit in the answer, or a verified answer, respondent should have moved for leave to amend his answer to include it. Respondent claims that there must be a traverse because the answer properly contests petitioner's claims of proper service even though respondent did not verify the answer. Respondent cites several cases that have held that an answer may be oral or written and need not be verified. (See generally Turk v B. Jakobsons & Son, 188 Misc 203, 205-206 [App Term 1st Dept 1946].) Respondent cites WNYT-TV v Moyinahan for the proposition that lack of verification should be overlooked because it is merely a technical defect. (97 AD2d 555, 556 [3d Dept 1983, mem] [holding that petitioner's failure to verify its petition should be disregarded in the interests of justice].) This argument overlooks that an affidavit of a process server attesting to proper service is prima facie evidence of proper service and a respondent's sworn denial of proper service is necessary to require a traverse hearing. (See generally NYCTL 1998-1 Trust & Bank of NY v Rabinowitz, 7 AD3d 459, 460 [1st Dept 2004].) Respondent supplied a sworn denial of proper service but only in response to petitioner's motion to dismiss his various objections in point of law, affirmative defenses, and counterclaim. Respondent may not obtain a traverse without moving to amend the answer to include his sworn allegations of improper service.

Petitioner's motion to dismiss respondent's sixth affirmative defense is granted. Respondent's sixth affirmative defense asks the court to dismiss the proceeding for failure to register the premises as a multiple dwelling. Petitioner has supplied a copy of the registration, which lists the premises as 1776 Second Avenue, New York, New York 10128. Respondent argues that this is not the correct registration. According to respondent, the petition designates the subject of the proceeding as apartment 22B in a building located at 300 East 93rd Street. Petitioner contends that the registration is proper and that the building in question is also known as 1776 Second Avenue. The court verified the registration of 300 East 93rd Street submitted by [*5]petitioner by using the Department of Housing Preservation and Development web site. The online multiple dwelling registration shows that the address on the petition, 300 East 93rd Street, is registered and that it is also known as 1776 Second Avenue. (See www.nyc.gov/html/hpd/html/online-tools/hpd-online-portal.html, last visited on September 3, 2004].) This court may take judicial notice of information taken from public records. (See Siwek v Mahoney, 39 NY2d 159, 163 n 2 [1976]; MDL § 328 [3] [a].)

Respondent's cross-motion to preclude petitioner from introducing evidence at trial is denied. According to respondent, petitioner failed to respond to the demand for a bill of particulars. CPLR 3042 (a) requires any party that receives a demand for a bill of particulars to serve a bill of particulars complying with each item of the demand except those to which a reasonably particular objection is stated within 30 days of the demand. CPLR 3042 (c) and (d) provide options if the party served with the demand fails to comply within 30 days. The options include allowing the party who served the demand to move to compel or, if the failure is willful, to secure penalties. Respondent contends that petitioner "has willfully failed" to respond within 30 days to the demand for a bill of particulars and should be precluded from introducing evidence at trial regarding the items to which petitioner allegedly failed to respond. As stated above, petitioner fully responded to respondent's demand in a timely manner.

Petitioner's motion for summary judgment is denied. Material issues of fact must be determined at trial. Summary judgment may be granted if the proponent of the motion makes a prima facie showing of entitlement to judgment as a matter of law by advancing sufficient "evidentiary proof in admissible form" to demonstrate the absence of any material issues of fact. (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 853 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980].) Petitioner has submitted evidence to show that some issues of material fact need not be resolved by a trial, but respondent's sixth affirmative defense states that he is entitled to an abatement in the rent owed for breach of the warranty of habitability. Respondent alleges several conditions in the apartment, that he was constructively evicted from his kitchen, and that he gave notice of the alleged conditions to petitioner's husband. Petitioner avers that she was never notified of the conditions. (Affidavit of Rosa Glorius at ¶ 10.) Petitioner does not, however, address the allegations of respondent in his affidavit annexed to his notice of cross motion and opposition to the motion in chief that petitioner's husband was notified. Petitioner's motion to dismiss respondent's sixth affirmative defense of breach of the warranty of habitability is also denied for the same reason.

The parties each requested the court award attorney fees. The determination of entitlement to attorney fees is deferred for the trial court.

The proceeding is adjourned for trial to October 12, 2004.

This opinion is the court's decision and order.

Dated: September 15, 2004

J.H.C.