This summary holdover proceeding was commenced by Salvatore Depaolis ( "Petitioner") seeking to recover possession of the top floor apartment at 138 28th Avenue Street, Brooklyn, New York, 11214 ( "subject premises"), based on the termination of Mary Pellegrino's month to month tenancy.

Pursuant to an Order dated May 4, 2006, The Hon. Ariel Belen appointed Self Help Community Services, Inc. ("SELFHELP") to act as Article 81 Guardian for Mary Pellegrino. The Jewish Association For Services For The Aged ("JASA") was named successor guardian to SELFHELP by order of the Hon. Ariel Belen dated June 20, 2007, but is allegedly not yet authorized to act.^[FN1]

SELFHELP has made a motion to dismiss the underlying petition pursuant to § 3211(a)(2), (7), and (8) of the Civil Procedure Law and Rules ("CPLR") based on the fact that Petitioner did not move for permission from Supreme Court prior to commencing this proceeding, and their allegation that neither SELFHELP, nor JASA, has been made a party to this proceeding, or served with the papers herein.

Petitioner submits no written opposition to the motion, but instead rests upon the affidavits of service and pleadings in the Court file, and asks that the Court deny SELFHELP's motion based on these documents.^[FN2] [*2]

QUESTIONS PRESENTED

I.IS THE FAILURE TO OBTAIN PERMISSION TO SUE APERSON ADJUDICATED TO BE INCOMPETENT, PRIOR TOTHE COMMENCEMENT OF THE SUIT, A JURISDICTIONALDEFECT REQUIRING DISMISSAL OF THE PROCEEDING?

The procedure for the commencement of litigation, against a person who has been judicially declared an incapacitated person, such as Mary Pellegrino, is set forth in the CPLR, and the Mental Hygiene Law. While there is no statutory authority to be found in either the CPLR or in the Mental Hygiene Law requiring that leave of court must be obtained, prior to the commencement of such a proceeding, courts have generally held that such leave is required. Smith v. Ketelas, 50 N.Y.S. 471 (App. Div., 1st Dept, 1898); Shatsky v. Seagate Association, 11 Misc 2d 905 (Sup. Ct., Kings Co., 1958); In re Newkirk, 42 Misc 2d 1067 (Sup. Ct., NY Co., 1964).

The purpose of said rule is to protect the incompetent's estate from the necessity of defending claims that are sham, frivolous or otherwise not meritorious. Van Vooren v. Cook, 191 Misc. 794 (Sup. Ct., Ontario Co., 1948) affd. 274 A.D. 966 (4th Dept.); In re Linden-Rath, 188 Misc 2d 537 (2001).

However, it is equally well established that the failure to meet this condition precedent is not jurisdictional and may be cured by a nunc pro tunc order.See e.g. , Van Vooren v. Cook, supra; In re Boruk, 21 Misc 2d 875, (Sup. Ct., Queens Co., 1959); Galante v. Bucciarelli, 130 Misc 2d 1050 (Justice Ct., Westchester Co., 1986); Sinley v. Estco, Inc., 25 Misc 2d 172 (Sup. Ct., Nassau Co., 1960).

As noted by the Court of Appeals, the omission of a condition precedent to the maintenance of an action is not jurisdictional. "The omission of such a condition does not necessarily bar the claim entirely. If no time limit for compliance with the condition is established ... the omission can be supplied and the action ... be decided on the merits." Copeland v. Salomon, 56 NY2d 222, at 227 (1982); Independence Savings Bank v. Triz Realty Corp., 100 AD2d 613 (1984)( action commenced without permission may be continued subject to the later order of appointing court or may be stayed pending nunc pro tunc application to appointing court).

Given the foregoing, the Court finds that dismissal of this proceeding is not warranted based on the failure of Petitioner to obtain permission prior to the commencement of the action. However, the proceeding is marked off calendar pending the Petitioner obtaining such an order from the appointing court nunc pro tunc.

II .WHERE THE NECESSARY PARTIES ARE NAMED IN THE PREDICATE NOTICES AND SERVED WITH ALL PLEADINGS AND NOTICES BUT NOT INCLUDED AS A PARTY IN THE CAPTION OR BODY OF THE PETITION, MUST THE PROCEEDING BE DISMISSED?

SELFHELP also moves for dismissal based on the allegation that this proceeding was [*3]improperly brought as a suit against Mary Pellegrino, the incapacitated person in her own name, and that SELFHELP was neither named nor served with the papers.

It is true that the caption of the Petition only lists Mary Pellegrino, John Doe, and Jane Doe. It is also true that the body of the Petition does not properly indicate the parties to the proceeding. Rather paragraph two of the Petition states "Respondent, MARY PELLEGRINO, "JOHN AND JANE DOE" entered into possession under an oral agreement. Respondent has an Article 81 Guardians Self Help Community Service Inc. And Jewish Association for the aged. (Sic)"

However, also part of the court file are a predicate notice and affidavits of service for both the predicate notice and the Petition. The captioned parties on the predicate notice and the affidavits of service for the predicate notice are as follows:

To: MARY PELLEGRINO AND SELFHELP COMMUNITY SERVICES INC., 520 EIGHTH AVENUE 5TH FLOOR, NEW YORK, NY 10018 AS ARTICLE 81 GUARDIAN OF MARY PELLEGRINO AND JEWISH ASSOCIATION FOR THE SERVICES FOR THE AGED, 132 WEST 31ST, 15TH FLOOR, NEW YORK, NY 1001 AS ARTICLE 81 GUARDIAN OF MARY PELLGRINO "JOHN DOE" AND "JANE DOE".

The affidavits of service for the Notice of Petition and Petition also include in the captionMary Pellegrino, SELFHELP, and JASA. Additionally Petitioner filed three separate affidavits of service establishing that SELFHELP, JASA and Mary Pellegrino were each served with both the predicate notice and the Notice of Petition and Petition in this proceeding. This service comports with the requirements of CPLR § 309 (c ).

The moving papers, which allege in conclusory fashion that no such service was made, are supported only by the affirmation of counsel for SELFHELP and make absolutely no reference to the affidavits of service in the file. Both SELFHELP and JASA were served by delivery to a person of suitable age and discretion, at their principal place of business. The name of each employee to whom papers were delivered is specified in each affidavit. The specific facts alleged in the affidavits of service are not even addressed by SELFHELP, in its moving papers, let alone disputed.

Thus, while the caption of the Petition and perhaps the body of the Petition need to be amended to reflect that the proper parties have been named and served herein, the predicate notice and all affidavits of service are proper and require no amendment. The irregularities in the caption and the Petition have caused no prejudice to the respondents, are readily subject to amendment, and do not require the dismissal of the proceeding herein. See e.g. CPLR 3025; Jackson v. New York City Housing Authority, 88 Misc 2d 121 (App. Term, 1st Dept.,1976).

As is the rule in other types of actions, leave to amend the pleadings will be freely granted in summary proceedings absent prejudice to the adverse party. Birchwood Towers No. 2 Assocs. v. Schwartz, 98 AD2d 699, 700 (2nd Dept., 1983). "It is elementary that mistakes or irregularities not affecting a substantial right of a party are not fatal. Mistakes relating to the name of a party involving misnomer or misdescription of the legal status of a party surely fall within the category of those irregularities which are subject to correction by amendment, particularly when the other party is not prejudiced and should have been well aware from the outset that a misdescription was involved." Covino v. Alside Aluminum Supply Co., 42 AD2d 77 (1973). [*4]

Therefor, the Court deems the caption herein amended to conform with the affidavits of service and predicate notice and to read that both SELFHELP and JASA are respondents herein in their capacity as Article 81 Guardian for Mary Pellegrino. 17th Holding LLC v. Rivera, 195 Misc 2d 531 (App. Term, 2nd Dept., 2002)(in the absence of demonstrable prejudice to tenant petition deemed amended).

The lack of prejudice to Respondents is further demonstrated by the fact that this is the second proceeding Petitioner has instituted for this relief, and that in the prior proceeding, under Index No. 73300/2007, SELFHELP moved for nearly identical relief. The petition in that proceeding, however did not name the Article 81 Guardian, at all, nor were JASA and SELFHELP served with the predicate notice and petition in that proceeding. That proceeding was discontinued pursuant to a stipulation of settlement. It is clear that when this case was commenced Respondents knew that they were intended to be included in the proceeding and were well prepared to immediately address the issues herein.

Based on the foregoing, SELFHELP's motion to dismiss the proceeding is denied, however the proceeding is marked off calendar pending the Petitioner obtaining a nunc pro tunc order from Supreme Court for permission to proceed with this proceeding. The proceeding may be restored by motion or stipulation of the parties.

This constitutes the decision and order of this Court.

Dated: September 5, 2007

Brooklyn, New York

_______________________

Hon. Sabrina B. Kraus

J.H.C.