Decision and Order I. Background and Motions On August 17, 2023, Petitioner commenced the holdover proceeding for a judgement of possession, issuance of warrant to evict Respondent from possession of the premises located at the ground floor of 330 East 39th Street New York, New York 10016 (“Premises”) and a money judgement for use and occupancy of the Premises plus with attorney’s fees. Petitioner claimed that the license between the parties expired on March 31, 2023 and Respondent failed to vacate the Premises on the license expiration date (see Petition 6). Petitioner further alleged that Respondent failed to vacate, quit and surrender possession of the Premises on or before August 11, 2023, following a 10-day Notice to Quit dated July 25, 2023 (see Petition 8 & 9; Exhibit A). On September 26, 2023 Respondent moved to dismiss the instant action (“Motion Seq. #1″) pursuant to CPLR 3211(a)(2) and/or 3211(a)(4) arguing that 1) the Court lacked subject matter jurisdiction and that 2) Petitioner previously filed an action in the Supreme Court of the County of New York, State of New York, Civil Term (“Supreme Court”). Petitioner opposed and cross-moved to supplement and amend (“Motion Seq. #2″) the notice of petition and petition pursuant to CPLR §3025(b) to add “Cleaning Concept 888, Inc.” and “XYZ Corp.” as respective respondent/under-licensee. On October 24, 2023, a third party/intervenor, “Cleaning Concept 888, Corp.”, filed a motion seeking to dismiss the Petition (“Motion Seq. #3″). Petitioner opposed Motion Seq. #3. On November 5, 2024, “Cleaning Concept 888 Inc.” moved (“Motion Seq. #4″) to stay the instant action pending “adjudication of Supreme Court cases” stating that there was a pending case in the Supreme Court (Cleaning Concept Corp. 888 v. Pan Am Equities et. al, Index #653685/2023) and that there were two additional proceedings brought by the Petitioner against the defendants (Index #653889/2023 and #653888/2023) (See Affirmation in Support of Motion Seq. #4). Petitioner opposed Motion Seq. #4 and the movant replied. On November 11, 2023, intervenor “Cleaning Concept 88 Inc.” moved (“Motion Seq. #5″) the court to add itself, “Cleaning Concept 88 Inc.”, to the instant action as a respondent. Petitioner opposed Motion Seq. #5. This Court considers all papers filed in connection with the foregoing mentioned motions and notes that few entities have been named as respective respondent or proposed respondent/third party intervenor: 1. “Cleaning Concept 88 Corp.”, as appeared in the Petition and Motion Seq. #1; 2. “Cleaning Concept 888, Inc.”, as appeared in Motion Seq. #2 and Motion Seq. #4; 3. “Cleaning Concept 888, Corp.”, as appeared in Motion Seq. #3; and 4. “Cleaning Concept 88 Inc.”, as appeared in Motion Seq. #5. II. Discussion 1. Motion Seq. #1, motion to dismiss and subject matter jurisdiction. Respondent claimed that in January 2022, its principal Lee injured his back and “conferred with Petitioner” about Liu “assuming all obligations” including “operating [in the] Premises” due to his injury (see Respondent Memorandum in Support of Motion at 2). This allegedly led to Ms. Liu paying Petitioner license fees and/rent for her use of the Premises for her company “Cleaning Concept 888 Inc” (id.). As such, Respondent contended that Mr. Lee did “not maintain possession or control of the Premises” (id. at 3). Respondent argued that because it lacked physical possession of the Premises, this Court did not have subject matter jurisdiction citing First Natl City Bank v. Wall St. Leasing Corp., 80 Misc 2d 707, 709 (Civ. Ct. Ny. Cnty. 1974) (id. at 3 &4). The Court disagrees. On a motion to dismiss, the courts “accept the facts alleged as true and determine simply whether the facts alleged fit within any cognizable legal theory” (22 Gramercy Park LLC v. Michael Haverland Architect P.C. 2020 N.Y. Misc LEXIS 3329 *12 [N.Y. Cty. Sup. Ct. 2020] citing Morone v. Morone, 50 NY2d 481, 484 [1980]). Petitioner rejected the notion that Respondent relinquished possession and control by way of “formal surrender or any document disavowing its legal rights to the Licensed Space or tendering the keys to Petitioner” (see Petitioner Memorandum in Opposition to Motion at 7). Petitioner contended that the “space [was] not vacant” and therefore Respondent retained a legal right to possession of the property (id.) The Court finds that there are questions of fact as to 1) whether Respondent had or relinquished possession by turning over the keys; and 2) whether the current operator was an extension of Respondent or a separate entity. Respondent cited caselaw purporting to demonstrate that physical possession was the sine qua non for subject matter jurisdiction (First Natl City Bank v. Wall St. Leasing Corp., 80 Misc 2d 707, 709 [Civ. Ct. Ny. Cnty. 1974]) and that “the possession necessary to sustain jurisdiction [was] physical possession not the legal right of possession” quoting Sarafian v. Wool Bros Corp., 75 Misc 2d 355. This, however, is incomplete. “Possession is a jurisdictional predicate to the maintenance of a summary proceeding. The party sought to be removed must either be in actual or constructive possession, or at least must claim the right to possession at the commencement of the proceeding” (Fishel v. Baronelli, 119 Misc. 2d 625, 626 [Civ. Ct. Ny. Cty. 1983] citing Rasch’s Landlord & Tenant including Summary Proceedings [2d ed], §1196). Taken together the factual disputes between the parties and the governing law preclude the Court from surrendering subject matter jurisdiction. This branch of Respondent’s motion to dismiss, Motion Seq. #1, is denied. 2. Motion Seq. #1, dismissal because of the Previously filed Supreme Court Actions. Petitioner commenced an action in the Supreme Court for breach of contract seeking monetary damages against Respondent and another entity arising from the same license. A court may dismiss a case pursuant to CPLR 3211(a)(4) when “there is another action pending between the same parties for the same cause of action in a court of any state or the United States; the court need not dismiss upon this ground but may make such order as justice requires.” The “critical element is that ‘both suits arise out of the same subject matter or series of alleged wrongs.” (Syncora Guarantee Inc., v. J.P. Morgan Securities, LLC, 110 A.D. 3d 87, 96 [1st Dep't 2013].) Respondent contended that because the previously filed action in the Supreme Court arose from the same allegations and subject matter, the instant proceeding should be dismissed. The Court disagrees. In order to warrant a dismissal, the two actions must be sufficiently similar, and the relief sought must be “the same or substantially the same” (White Light Prods., Inc. v. On the Scene Prods., Inc., 660 N.Y.S. 2d 568, 571 [1st Dep't 1997]). In the prior Supreme Court action, Petitioner alleged breach of contract claims against Respondent and another entity. Here, in the instant action, Petitioner sought different relief, i.e., judgment of possession and use and occupancy for the period of the holdover. The legal theories asserted, and relief sought are different from each action. The Court declines to dismiss the Petition based on such ground. This branch of Respondent’s motion to dismiss, Motion Seq. #1, is denied. 3. Motion Seq. #2, Petitioner’s leave to amend the Petition, and Motion Seq. #5, intervenor Cleaning Concept 88 Inc.’s motion to add itself to the instant action as a respondent. CPLR 305 states that “at any time, in its discretion and upon such terms as it deems just, the court may allow any summons or proof of service of a summons to be amended” so long as the opposing party is not prejudiced by the amendment (CPLR 305 [c]). Similarly, CPLR 3025 states that a party may amend its pleadings “at any time by leave of court” and that such leave “shall be freely given” as may be just (CPLR 3025 [b]). Courts have often allowed parties to amend pleadings in the interest of justice. In Magzamen v. Uws Ventures III LLC, the court granted petitioner’s motion to amend the named parties (Magzamen v. Uws Ventures Iii Llc, 72 Misc. 3d 677, 149 N.Y.S.3d 858, [2021]). There, the motion sought to change the petitioners after an election was held, which resulted in a new President, Vice President, and managing agent (id.). Such court emphasized that granting the motion would not significantly prejudice the respondents and that there was evidence submitted in support of the proposed amendments (id.). The court in 60 W. 190th St. LLC v. Rodriguez similarly granted a motion to amend the pleadings. There, the court explained that an amendment is favored “absent ‘surprise or prejudice resulting directly from the delay’” (60 W. 190th St. LLC v. Rodriguez, 67 Misc. 3d 362, 123 N.Y.S.3d 413 [2020] citing Lindo v. Brett, 149 AD3d 459, 52 NYS3d 308 [2017]). Here, this Court finds no surprises or prejudice to the Respondent for Petitioner to amend its Petition to add “Cleaning Concept 888, Inc.” and “XYZ Corp.” as respective respondent/under-licensee. This branch of Petitioner’s Motion Seq. #2 is granted. Equally, this Court finds no surprises, prejudice, or delay for “Cleaning Concept 88 Inc.” to be added as respondent in the action, as so moved in Motion Seq. #5. This branch of Motion Seq. #5 is granted. 4. Motion Seq. #2, amendment of predicate notices to reflect pleadings, and Motion Seq. #5. The Court will now evaluate whether the predicate notices must be amended as well in order to conform to any amendments made to the pleadings. Written notice by the Petitioner to the Respondent was required in the instant action. Since Petitioner sought to amend the Petition to add additional names, the issue is whether the predicate notice requirement will still be satisfied after the amendment is made. Predicate notices cannot be amended (Stockton v. McElderry, 2022 N.Y. Misc. LEXIS 731, *5 [2022] citing Singh v. Ramirez, 20 Misc 3d 142(A), 872 N.Y.S.2d 497 [2008]). However, a misspelling of a party’s name is not a defect requiring dismissal (Stockton v. McElderry at *5 citing Fa Wah Mgt., v. Alvarrez, 18 Misc 3d 132(A), 856 N.Y.S.2d 497, [2008]) (referring to the party as the Administrator, as opposed to Limited Administrator, is of no consequence). On the other hand, a misstatement about the nature of a tenancy in the predicate notice will render the petition defective. (Stockton v. McElderry at *5). The amendment sought by the Petitioner here is more akin to a misspelling of a party’s name than a misstatement about the nature of a tenancy. Despite that the entities might be different, which issue must be resolved during trial, the names of all entities at hand are incredibly similar. Since a proper notice is a condition precedent to this action, a lack of a proper predicate notice is fatal to the proceeding (Fitzpatrick Hous. Dev. Fund v. Gonzalez, 2018 NYLJ LEXIS 2983. *4-*5 [2018]). In assessing whether the predicate notice is proper enough to allow for this proceeding, the Court must analyze the notice’s reasonableness (id.). In our instant holdover proceeding, Petitioner sent the “Notice to Terminate Month-To-Month Tenancy” (“Termination Notice”) to “Cleaning Concept 888 Inc., and all other persons and/or entities occupying the premises” on September 15, 2023 (See NYSCEF #63). The additional party Petitioner sought to add in its Petition and the third-party intervenor sought to be included in the action were all included in the Termination Notice under” all other persons and/or entities occupying the premises” (See Termination Notice). However, Petitioner failed to include “XYZ Corp.” in its Petition and Notice of Petition. Here, this Court finds no surprises or prejudice to the Respondent for Petitioner to amend its Petition and Notice of Petition to add “Cleaning Concept 888, Inc.” and “XYZ Corp.” as respective respondent/under-licensee. Equally, this Court finds no surprises, prejudice, or delay for “Cleaning Concept 88 Inc.” to be added as respondent in the action. In addition, the predicated Termination Notice has already had the built-in mechanism to allow “Cleaning Concept 888, Inc.” and “Cleaning Concept 88 Inc.” to be included and reflected in the predicated notice. This Courts grants this branch of Petitioner’s motion to amend, Motion Seq. #2 and Cleaning Concept 88 Inc.’s motion, Motion Seq. #5, to add Cleaning Concept 88 Inc. in the instant action. Motion Seq. #2 and Motion Seq. #5 are granted. 5. Motion Seq. #3, Cleaning Concept 888, Corp.’s motion to dismiss. CPLR 3212 provides that “a motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions” (CPLR 3212[b]). “Mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient” (Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]). “A [respondent] moving for summary judgment [seeking an order dismissing petitioner's complaint] has the initial burden of coming forward with admissible evidence, such as affidavits by persons having knowledge of the facts, reciting the material facts and showing that the cause of action has no merit” (GTF Mktg. v. Colonial Aluminum Sales, 66NY2d 965, 967 [1985]; Anghel v. Ruskin Moscou Faltischek, P.C., 190 AD3d 906, 907 [2d Dept 2021], see Jacobsen v. New York City Health & Hosps. Corp., 22NY3d 824, 833 [2014]). A motion for summary judgment “shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party” (CPLR 3212[b]; Zuckerman v. City of New York, at 562, see GTF Mktg. v. Colonial Aluminum Sales, 66NY2d at 968). “To defeat a motion for summary judgement the non-moving party must show that there is genuine triable issue of fact” (Melendez v. Alliance Hous. Assoc., 2021 N.Y. Misc. LEXIS 31940 [Sup Ct, Bronx County Aug. 5, 2021, No. 25898-2017E]). Here, factual issue remains and Cleaning Concept 888, Corp. has failed to establish its prima facie case warranting a dismissal of the proceeding. Motion Seq. #3 is denied. 6. Motion Seq. #4, stay of the instant action due to Supreme Court actions. New York courts have held that the determination of the “complex questions” is not proper for “a summary holdover proceeding”, rather, those “complex questions” shall be resolved in a “plenary action” brought by the parties (See Bomze v. Jaybee Photo Suppliers, Inc. 117 Misc. 2d 957, 958 [1st Dep't 1983]). Here, parties have litigated the plenary actions in the Supreme Court, which can be concurrently brought when a summary proceeding is pending which is “designed to expeditiously resolve disputes between landlord and tenant” (Chinatown Preservation HDFC v. Chen, 2010 N.Y. Misc. LEXIS 872 *5 [Civ. Ct. Ny. Cty. 2010] citing Bomze v. Jaybee Photo Suppliers, Inc. 117 Misc 2d 957, 958 [1st Dep't 1983]). Cleaning Concept 888 Inc.’s motion, Motion Seq. #4, to stay the instant action pending “adjudication of Supreme Court cases” is denied. III. Order Accordingly, it is ORDERED that Respondent, Cleaning Concept 88 Corp.’s Motion Seq. #1, seeking to dismiss the Petition is DENIED, without prejudice pending resolution of the trial; and it is further ORDERED that Petitioner’s Motion Seq. #2 for leave to amend the Petition adding Cleaning Concept 888, Inc. and XYZ Corp. to the suit is GRANTED; and it is further ORDERED third party/intervenor, Cleaning Concept 888, Corp.’s motion seeking to dismiss the Petition, Motion Seq. #3, is DENIED; and it is further ORDERED that Cleaning Concept 888 Inc.’s motion, Motion Seq. #4, to stay the instant proceeding is DENIED; and it is further ORDERED that third party/intervenor, Cleaning Concept 88 Inc.’s motion to add itself to the action as respondent, Motion Seq. #5, is GRANTED; and it is further ORDERED that the proposed Supplemental Notice of Petition and amended petition annexed to the motion papers is accepted by the Court and is deemed to be filed; and it is further ORDERED that the proposed answer of the third party/intervenor annexed to the motion papers is accepted by the Court and is deemed to be filed; and it is further ORDERED that the part clerk is directed to calendar this matter for an immediate trial on November 13, 2024 at Part 52 among all movants appeared in Motion Seq. #1 through Motion Seq. #5. This constitutes the DECISION and ORDER of this Court. Dated: October 2, 2024
