The following papers numbered 1 to 2 were read and considered on the Petitioner’s Order to Show Cause. Papers Numbered Order to Show Cause and Affidavits Annexed 1 Filed Papers 2 DECISION AND ORDER Petitioner filed a Non-Payment Petition on March 9, 2021 to recover $11,483.51 representing rent from June 2020 through January 2021. Thereafter, the matter appeared on the court’s calendar on April 13, 2021. Respondents failed to appear. The matter was adjourned to May 18, 2021 for a default hearing pursuant to the COVID-19 Emergency Eviction and Foreclosure Protection Act of 2020 (“CEEFPA”) Part V, Subpart A, §5 and Petitioner served Respondents with a notice which advised that a default hearing would be seeking a default money judgment and warrant of eviction in the amount of $11,438.51. The Notice of Motion then stated: PLEASE TAKE NOTICE, that on the above-mentioned Default Hearing date, the Petitioner shall demand that the Petition be amended to include all unpaid rent and/or the fair value of the use and occupancy of the premises due to date in the amount of $15,995.51) as follows: $1,519.00 for rent for February, 2021; $1,519.00 for rent for March, 2021; $1,519.00 for rent for April, 2021. PLEASE TAKE NOTICE, that on the above-mentioned Default Hearing date, the Petitioner shall also demand that the Petition be amended to include all unpaid rent and/or the fair value of the use and occupancy of the premises due at the time of the Default Hearing date. The papers filed with the court consisted of a document labeled “Notice of Motion” and Affirmation of Service dated April 14, 2021. The Affirmation of Service indicates that one copy of the Notice of Motion was served upon all Respondents in one envelope by mail. The Respondents failed to appear on May 18, 2021 and the Court, on the record, granted the Petitioner’s application to amend and entered a default judgment against the Respondents in the sum of $15,995.51. Thereafter, the Court by Decision and Order dated June 11, 2021, vacated that part of the decision to amend the judgment on default, citing CPLR §3215[b] and 96 Pierrepont LLC v. Mauro, 19 A.D.3d 667 [2d Dept. 2005], and granted Petitioner a judgment for the amount sought in the petition, $11,483.51. Petitioner now moves to reargue. A motion for leave to reargue must be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion but shall not include any matters of fact not offered on the prior motion. CPLR §2221 (d). Petitioner argued the Court lacked jurisdiction to enter the Order on June 11, 2021. Petitioner sets forth three arguments in support of the present motion. First, Petitioner contends that the Court erred in finding that the Petition cannot be amended as sufficient notice was provided to the Respondents. Petitioner cites to the Notice of Petition and Petition which states that Petitioner shall demand that the Petition be amended. The pertinent language states: “[t]he Petitioner shall demand that the petition be amended to include all unpaid rent and/or the fair value of the use and occupancy of the premises due at the time of the Court date and/or any subsequent court date in this proceeding.” (Petitioner, Affirmation in Support, p. 6 par 17 citing Notice of Petition dated January 19, 2021). Petitioner asserts that that paragraph 5 of the Petition and Petitioner’s “Notice to Amend” also constituted sufficient notice of the amendment. Petitioner argued that leave to amend should be freely given pursuant to CPLR §3025[b] absent prejudice or surprise to the Respondents. The statute provides: “A party may amend his or her pleading, or supplement it by setting forth additional or subsequent transactions or occurrences, at any time by leave of court or by stipulation of all parties. Leave shall be freely given upon such terms as may be just including the granting of costs and continuances. Any motion to amend or supplement pleadings shall be accompanied by the proposed amended or supplemental pleading clearly showing the changes or additions to be made to the pleading.” CPLR §3025[b] (emphasis added). The Petitioner further argued that even on inquest there is no prejudice to grand an amendment of a complaint for damages reasonably contemplated by the parties, such as rent. Frank P. McNally Inc v. Ontario Frgt Lines Corp., 29 A.D.2d 678, 679 [2d Dept 1968]. Petitioner stated the parties agreed to the amount of rent that was due and owing each month and when it became due and owing and thus, the rent sought by Petitioner in its motion to amend was reasonably contemplated by the parties. Petitioner concluded that it would be an abuse of discretion if the Court were to find that prejudice exists. Leave to amend pleadings is to be freely given, absent significant prejudice or surprise to the opposing party. Edenwald Contracting Co. v. New York, 60 N.Y.2d 957 [1983]; McCaskey, Davies & Assoc. v. New York City Health and Hosps. Corp., 59 N.Y.2d 755 [1983]. This standard applies to summary proceedings under CPLR Article 4, including holdover proceedings under RPAPL Article 7. See e.g. 289 & 305 Assocs. LP v. Loman, 50 Misc. 3d 141 [A] [App. Term. 1st Dept 2016]. However, the court may not permit amendments of a pleading at an inquest if those amendments “would broaden the scope of the inquest and increase the amount of damages provable by plaintiff.” Recon Car Corp. of N.Y. v. Chrysler Corp., 130 A.D. 2d 725 [2d Dept., 1987]. In other words, “a default judgment cannot exceed in amount of differ in the kind of relief from that demanded in the complaint.” Sanford v. Powers, 93 A.D.2d 985 [4th Dep't 1983]; see also CPLR §3215(b). While leave to amend is freely granted absent prejudice or surprise, (McCaskey, Davies & Assoc. v. New York City Health & Hosps. Corp., 59 N.Y.2d 755, 757, 463 N.Y.S.2d 434 [1980]; CPLR §3025[b]), Petitioner never sought such leave. While arguably consistent with the provisions of CEEFPA Part V, Subpart A, §5 for purposes of moving for a default judgment, this notice does not meet the requirements of CPLR §3025. First, Petitioner’s papers consisted only of a Notice of Motion and an Affidavit of Service. The notice was mailed to multiple Respondents in a single envelope. CPLR §3025 mandates that a movant annex a copy of the “proposed amended or supplemental pleading clearly showing the changes or additions to be made to the pleading.” No amended pleading was served upon Respondents. “In the absence of a formal motion to amend, the damages must be limited to the amount sought in the complaint.” Reid v. Weir Metro Ambulance Serv., 191 A.D.2d 309 [1993] citing 17 E. 80th Realty Corp v. 68th Assocs., 173 A.D.2d 245, 249 [1st Dept., 1991]. The Court is not persuaded by Petitioner’s arguments that the language in the Notice of Petition and Petition and the Notice of Motion (with no motion annexed) meet the requirements of CPLR §3025. The prior alleged notices provided to Respondents are of no moment. As no motion to amend was ever served and as leave not granted, there is no basis for Petitioner’s argument that the rent sought by the Petitioner in its motion to amend was reasonably contemplated by the parties. Petitioner next contends that the Court may not issue a judgment sua sponte to reverse a prior decision and order on the record as the Court denied Petitioner’s substantial right. See, Howell v. City of New York, 165 A.D. 3d 657, 658 [1st Dept., 2018]. Citing CPLR 5019[a], Petitioner maintains that the Court’s discretion to correct the order was limited to curing any mistake, defect or irregularity “not affecting a substantial right of a party.” Betts v. Tsitiridis, 171 A.D.3d 573 [1st Dept., 2019]. CPLR §5019[a] provides “a judgment or order shall not be stayed, impaired or affected by any mistake, defect or irregularity in the papers or procedures in the action not affecting a substantial right of a party. A trial or an appellate court may require the mistake, defect or irregularity to be cured.” “Where the amendment is in the line of the correction of a mistake or of an omission, obviously due, as in this case to the trial judge’s oversight, the power to take is a general and incidental one.” Bohlen v. Metropolitan Elev. Ry. Co., 76 Sickles 546 [1890]. Petitioner argued that it is entitled to the full amended judgment amount and that the court denied Petitioners substantial right to damages due and owing. Petitioner asserted “[i]nstead of penalizing the Petitioner who has complied with the law, this Court should condemn Respondent’s willful disregard of the law by failing to appear in Court.” (Petitioner’s Affirmation in Support, p. 8, par. 36). However, it is the Court’s position that Petitioner’s alleged right never existed. The papers submitted in support of the sought-after amendment were insufficient and deprived the Respondents of their right to answer a new pleading. Kelly v. Hilbert, 200 App. Div. 489 [1st Dept., 1922]. The Court has discretion to correct a mistake, defect or irregularity “not affecting a substantial right of a party” pursuant to CPLR 5019[a]. “The ‘mistake, defect or irregularity’ referred to in CPLR 5019 (subd [a]) is essentially a clerical error such as the addition of interest to a verdict where none was demanded (Dowling v. Stephan, 206 Misc. 518); or a judgment entered without the required documents (Kozol v. Pugliese, 56 Misc.2d 178). A court may control, and therefore amend, a default judgment entered in error or in violation of law (Erba Corp v. Paul, 25 Misc. 2d 185); or where, irrespective of any statute, The court has the common-law right to ‘correct or modify An erroneous judgment in the interest of justice’” (Ladd v. Stevenson, 112 N.Y. 325, 332; Barry v. Mutual Life Ins. Co. of N.Y., 53 N.Y. 536, 539; Matter of Baker v. Macfadden Pub., 300 N.Y. 325, 329)” First Natl. City Bank v. Elsky, 62 Misc.2d 880, 881-882 (1970). As Petitioner failed to comply with the provisions of CPLR §3025, Petitioner was not entitled to a judgment more than the amount demanded in the Notice of Petition and Petition. Thus, the Court’s modification of the judgment amount did not affect a substantial right. The determination here was based on “a misapprehension of the underlying facts and circumstances….” Owens v. Stuart, 292 A.D. 2d 677, 679 [3rd Dept., 2002]. Accordingly, the Court adheres to its Decision. Petitioner’s motion is denied. Dated and Entered: October 15, 2021
