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Beth Ropshitz v. Joseph Schwartz

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS


April 11, 2011

BETH ROPSHITZ,
RESPONDENT,
v.
JOSEPH SCHWARTZ,
APPELLANT.

Appeals from two judgments of the Justice Court of the Town of Monroe, Orange County (Jack J. Rosenthal, J.), entered January 20, 2009 and October 27, 2009, respectively.

Ropshitz v Schwartz

2011 NY Slip Op 50635(U)

Decided on April 11, 2011

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This opinion is uncorrected and will not be published in the printed Official Reports.

PRESENT: TANENBAUM, J.P., MOLIA and IANNACCI, JJ

The final judgment entered January 20, 2009, after a non-jury trial, awarded petitioner possession and the sum of $30,240 in a nonpayment summary proceeding. The judgment entered October 27, 2009 awarded petitioner the sum of $30,020.

ORDERED that the final judgment entered January 20, 2009 and the judgment entered October 27, 2009 are reversed, without costs, and the petition is dismissed.

Petitioner brought this summary proceeding as a nonpayment proceeding, alleging that Joseph Schwartz (appellant) had entered into possession of the premises pursuant to an oral lease agreement. Because we find that the petition is defective, we reverse the final judgment and the judgment that were entered in favor of landlord and dismiss the petition.

Pursuant to RPAPL 741, a petition must state the facts upon which the proceeding is based. Under this section, a respondent is entitled to a concise statement of the ultimate facts upon which the proceeding is based (Giannini v Stuart, 6 AD2d 418 [1958]), and a petition which contains fundamental misstatements and omissions will be dismissed (Jeffco Mgt. Corp. v Local Dev. Corp. of Crown Hgts., 22 Misc 3d 141[A], 2009 NY Slip Op 50455[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). "With respect to the contents of the petition, adequacy of notice in a landlord-tenant proceeding is governed by a standard of reasonableness under the circumstances" (546 W. 156th St. HDFC v Smalls, 43 AD3d 7, 11 [2007]).

Here, the petition alleges that appellant entered into possession pursuant to an oral lease agreement, with which claim appellant, who appeared pro se at trial, took issue. At trial, petitioner's counsel conceded, in effect, that this statement was incorrect, alleging instead that appellant had entered into possession as a contract vendee, and that there was subsequently an oral agreement changing appellant's monthly purchase-price payments to rent. On appeal, landlord claims there was a written agreement dated June 21, 2006, pursuant to which the parties agreed to "a lease to purchase." The petition fails to set forth the facts giving rise to any alleged subsequent tenancy, as claimed by landlord at trial, or with respect to any written agreement, as claimed by landlord on appeal. In view of these defects, the petition, which was not amended, did not adequately put the court or appellant on notice of petitioner's claim and should have been dismissed (see McFadden v Sassower, 26 Misc 3d 141[A], 2010 NY Slip Op 50316[U] [App Term, 9th & 10th Jud Dists 2010]).

For the aforestated reasons, the second judgment, entered October 27, 2009, which appears to have been intended to supersede so much of the prior judgment as awarded landlord a money judgment, must also be reversed.

Accordingly, the final judgment entered January 20, 2009 and the judgment entered October 27, 2009 are reversed and the petition is dismissed.

Tanenbaum, J.P., Molia and Iannacci, JJ., concur.

Decision Date: April 11, 2011

20110411

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