191 Chrystie, LLCv.Sonnier

Appellate Term of the Supreme Court of New York, First DepartmentDec 16, 2008
570097/08 (N.Y. Misc. 2008)
570097/082008 N.Y. Slip Op. 52513


Decided December 16, 2008.

Tenant appeals from an order of the Civil Court of the City of New York, New York County (Gary F. Marton, J.), dated November 5, 2007, which denied his motion for summary judgment dismissing the petition, and granted landlord's cross motion to the extent of amending the petition and severing the first and second counterclaims in a holdover summary proceeding.

Order (Gary F. Marton, J.), dated November 5, 2007, affirmed, with $10 costs.

PRESENT: McKeon, P.J., Davis, J.

We agree that this holdover summary proceeding is not ripe for summary disposition. The record raises triable issues as to whether tenant was responsible for the installation of the bathroom door containing lead-based paint, which resulted in an agency violation being placed against the building, and whether tenant refused landlord access to the premises for the purpose of remediating the hazardous lead condition, in breach of a substantial obligation of the tenancy. Resolution of the credibility issues presented by the parties' conflicting submissions must await further exploration at trial ( see BME Three Towers v 225 E. Realty Corp. , 3 AD3d 444 ).

We find no abuse of discretion in the grant of that portion of landlord's cross motion seeking to amend the petition. Any infirmity in landlord's description of the demised premises as the "6th floor loft," as stated in the petition, instead of "6th floor front loft as now divided," as set forth in the predicate notices, was correctable by amendment and did not rise to a jurisdictional defect ( see 500 Lincoln LLC v Tunnel Self-Storage, LLC , 6 Misc 3d 128 [A], 2005 NY Slip Op 50019[U] [2005]). The description of the unit in the notice of petition and petition could not have materially misled or confused this sixth floor tenant or hindered the preparation of his defense ( see Oxford Towers Co. v Leites , 41 AD3d 144 ; 190 Riverside Dr. v Nosei, 185 Misc 3d 696).

We have considered tenant's remaining contentions and find them to be without merit.