Opinion
570030/21
09-21-2021
DUPONT REALTY, LLC, Petitioner-Landlord-Appellant, v. Maximino GARCIA and John Garcia, Respondents-Tenants, and Alfonsa Santiago, Respondent-Undertenant-Respondent, and "John Doe" and "Jane Doe," Undertenants.
Per Curiam.
Order (Frances A. Ortiz, J.), dated February 10, 2020, modified, without costs, petitioner-landlord's motion to amend the petition granted and the matter remanded to Civil Court for further proceedings, including disposition of petitioner-landlord's motion for summary judgment.
Civil Court improvidently exercised its discretion in denying petitioner-landlord's motion to amend the petition to correct a misstatement as to the multiple dwelling status of the building (see Jackson v New York City Hous. Auth. , 88 Misc 2d 121 [App Term, 1st Dept 1976] ). Permission to amend pleadings should be "freely given" ( CPLR 3025[b] ), and there was no evidence of any prejudice or surprise to respondents by to the proposed amendment (see A.N. Frieda Diamonds, Inc. v Kaminski, 122 AD3d 517 [2014] ). Since the limited proposed amendment was clearly described in the moving papers, petitioner-landlord's failure to submit a proposed amended petition with its moving papers (see CPLR 3025[b] ) was a technical defect, which the court should have overlooked (see CPLR 2001 ; Medina v City of New York , 134 AD3d 433 [2015] ). Likewise, petitioner's reliance upon subdivision (c) of CPLR 3025, rather than subdivision (b), caused no prejudice, as respondent was aware of the relief being sought (see Pursuit Inv. Mgt., LLC v Alpha Beta Capital Partners , L.P., 134 AD3d 502 [2015] ; Moon v Tupler , 110 AD3d 486 [2013] ), and applications to amend under either subdivision are determined "in the same manner and by weighing the same considerations" ( Murray v City of New York , 43 NY2d 400, 405 [1977] ).
Civil Court did not reach the balance of petitioner-landlord's motion seeking summary judgment, and we remand the matter to Civil Court for such determination.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
All concur.