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Nissim Najjar, Avi Levy, Eddie Najjar, Ruth Arfi and Aliza Barak v. Chana Batya Cooper

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS


April 4, 2012

NISSIM NAJJAR, AVI LEVY, EDDIE NAJJAR, RUTH ARFI AND ALIZA BARAK,
RESPONDENTS,
v.
CHANA BATYA COOPER,
APPELLANT.

Appeal from an order of the Civil Court of the City of New York, Kings County (Marcia J. Sikowitz, J.), dated March 2, 2011, deemed from a final judgment of the same court entered March 2, 2011 (see CPLR 5520 [c]).

Najjar v Cooper

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This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 4, 2012

PRESENT: PESCE, P.J., GOLIA and ALIOTTA, JJ

The final judgment, entered pursuant to the March 2, 2011 order denying tenant's motion to dismiss the petition and granting landlords' cross motion for leave to amend the petition and for the dismissal of tenant's general defense and the entry of a final judgment, awarded landlords possession and the sum of $15,400, in a nonpayment summary proceeding.

ORDERED that the final judgment is affirmed, without costs.

The petition in this nonpayment proceeding describes the premises as "5807 13th Avenue, Brooklyn, NY 11219." In moving to dismiss the petition on the ground that the petition's description of the premises is inadequate, tenant alleged that there are three apartments located at that premises, and that tenant's apartment is located on the first floor. Contrary to tenant's contention, the defect in the petition was not jurisdictional (see US Airways, Inc. v Everything Yogurt Brands, Inc., 18 Misc 3d 136[A], 2008 NY Slip Op 50279[U] [App Term, 2d & 11th Jud Dists 2008]). Consequently, the 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 (see 191 Chrystie, LLC v Sonnier, 21 Misc 3d 144[A], 2008 NY Slip Op 52513[U] [App Term, 1st Dept 2008]).

Furthermore, we find that the Civil Court properly granted the branch of landlords' cross motion seeking the dismissal of tenant's general defense and the entry of a final judgment, pursuant to RPAPL 745 (2) (c) (i), based on tenant's failure to pay the court-ordered use and occupancy. It may be true that the affirmation of landlords' attorney submitted in support of landlords' cross motion failed to demonstrate personal knowledge of all of the relevant facts. However, in her brief on appeal, tenant acknowledges that tenant "has failed to pay the U & O." Accordingly, the final judgment is affirmed.

Pesce, P.J., Golia and Aliotta, JJ., concur.

Decision Date: April 04, 2012

20120404

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