Petitioners/landlord, referred to collectively as "Jewel of Asia," commenced this non-payment proceeding to recover possession of commercial premises from respondent/tenant and a money judgment for rent arrears in the sum of $90,000.00, with interest from April 1, 2007, together with attorneys' fees, costs and disbursements. Respondent moves to dismiss the petition upon grounds that the Court lacks subject matter jurisdiction over the matter in that the proper party did not file the petition in accordance with RPAPL §721(1) and the petition is not properly verified. Petitioners oppose the motion upon grounds that the petitioner is the owner and landlord of the premises and therefore, is a proper party to commence a non-payment proceeding; and that respondent has waived any objection to the verification and captioned name of the petitioner by failing to raise the issue in the proceedings pending in Supreme Court between the same parties relating to the same leased premises. Petitioners cross-move for an Order directing respondent to remit rental arrears into escrow during the pendancy of this action.

For the reasons set forth herein, the respondent's motion to dismiss is denied. The Court reserves decision on petitioners' motion directing respondent to remit rental arrears pending the proceedings to be held on January 3, 2007.

RPAPL §721 enumerates the classes of persons authorized to commence a summary proceeding to recover possession of real property. Where a tenant has defaulted in the payment of rent pursuant to a lease agreement, a summary proceeding may be commenced by the landlord or lessor. RPAPL §711(2); RPAPL §721(1). "[T]he courts have adopted a flexible approach regarding the description of a petitioner's interest, and an inflexible approach to issues that may somehow pertain to title or ownership." (Fame Company v. Sandberg, 9 Misc 3d 1115[A] [Civ. Ct. NY Co. 2005]). "[A]ny misstatement of exact ownership interest in the petition is amendable at trial or by motion." (Eleven Fifteen Joint Venture v. LIU Imports, Inc., 2000 WL 33952042 [Civ. Ct. NY Co. 2000]). Questions of title or ownership are not properly litigated in summary proceedings. (Ferber v. Salon Moderne, 174 Misc 2d 945, 946 [App.Term 1st Dept. 1997]).

Here, the respondent objects to the use of Jewel of Asia Realty Corp. as the name of the petitioner even though it is clear that this entity is the proper owner of the premises, and the name Jewel of Asia, Inc. was erroneously used in the lease.The respondent has not sought rescission of the lease and has remained in possession while withholding rent on the ground of actual partial eviction. "To the extent tenant is aggrieved by any misrepresentation of title in the [*3]lease, its remedy is in a plenary action." (Ferber v. Salon Moderne, supra , 174 Misc 2d at 946).

Jewel of Asia Realty Corp. is the owner of the premises and as such, has standing to commence the non-payment proceeding. In addition, respondent has acknowledged Jewel of Asia Realty Corp. and Syed Nayeem as the landlords in the proceeding commenced in the Supreme Court. The lease was signed by Syed Nayeem as an officer of Jewel of Asia and Mahfil Corporation. Respondent Unique Affairs has always dealt with Syed Nayeem as the landlord and refers to him as such. Respondent has not established any prejudice as the result of any inadvertent error or misstatement of the exact ownership interest in the petition and therefore, the Court's subject matter jurisdiction is not affected.

Respondent objects to the verification of the petition in that Dr. Nayeem does not state or verify his relationship to Jewel of Asia, Inc. or the relationship of Jewel of Asia, Inc. to the petitioner, and argues that this is a jurisdictional defect. The Court finds this argument to be without merit. A verification is merely part of a petition and shall be liberally construed. "[D]efects [in pleadings] shall be ignored if a substantial right of a party is not prejudiced. C.P.L.R §3026. Thus where a party submits a defectively verified pleading, courts should disregard minor defects or permit ample opportunity to correct deviations from the prescribed form . . . [since] [i]rregularities rarely result in prejudice to a party or affect the substance of the litigation." (SLG Graybar, L.L.C. v. John Hannaway Law Offices, 182 Misc 2d 217, 221 [Civ. Ct. NY Co. 1999]). "It is now well-settled that the failure to verify or properly verify a petition, even in a summary proceeding . . . does not deprive the court of subject matter jurisdiction and may not otherwise be deemed a jurisdictional defect." Id.

The Court finds that the petitioners' lack of reference to Jewel of Asia, Inc. in the petition to be a minor irregularity, which has not resulted in any prejudice to the respondent. Having named Jewel of Asia, Inc. and Jewel of Asia Realty Corp., along with the President, Syed Nayeem, in its Supreme Court action, respondent was fully aware that the parties were related to each other and to the subject premises. The inclusion of Jewel of Asia Realty Corp., the proper ownership entity, as the petitioner, despite the erroneous use of Jewel of Asia, Inc. as the name of the landlord in the lease does not deprive the court of subject matter jurisdiction and therefore, this matter shall proceed on its merits.

Moreover, the Court finds that respondent has waived any objection to the verification of the petition for failure to act with due diligence as required by CPLR §3022. When verification of a pleading is required by statute, and it is either unverified or defectively verified, the pleading may be treated "as a nullity" provided the party gives notice with due diligence to the attorney of the adverse party that he elects to do so. CPLR §3022. Due [*4]diligence has been held to mean "within twenty-four hours." (O'Neil v. Kasler, 53 AD2d 310 315 [4th Dept. 1976], citing Westchester Life v. Westchester Magazine Co., 85 NYS2d 34 [1948]). A party who waits longer before giving notice should be held to have waived the objection. (Id. citing Siegel, Practice Commentaries to CPLR Rule 3022, s C3022:2, Book 7B McKinney's Cons.L., p. 396.)

The notice must also specify the particular reasons the verification is considered defective. The notice may not merely state that the pleading is being returned because it is unverified or defectively verified; it must specify reasons. The law requires "that the notice should specify the particulars wherein the verification was defective," and if those particulars are not specified then the notice "is insufficient to justify the return of the pleading." (Treen Motors Corp. v. Van Pelt, 106 Misc. 357, [Sup.Ct. Kings Co.1919]).

Here, the petition was served upon respondent on November 27, 2007. The respondent served an answer to the petition on December 3, 2007, which contains a non-specific affirmative defense of improper verification. The parties appeared in Court on December 6, 2007, which is the first time that respondent raised specific objections to the verification of the petition. Under these facts, the Court finds that respondent waived any objection to the verification of the petition for failure to act with due diligence as required by CPLR §3022.

CONCLUSION

Respondent's motion to dismiss the petition is denied. The parties are scheduled to appear for trial on January 3, 2008. In light of the imminent trial date, the Court reserves decision on petitioners' motion directing respondent to remit rental arrears pending the proceedings.

The foregoing constitutes the Decision and Order of the Court.

Dated:December 31, 2007

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HON. FRANCESCA E. CONNOLLY [*5]

Town Justice