Upon the foregoing cited papers and after oral argument, H & H REALTY, INC. ("Petitioner") moves for an Order granting leave to amend the caption, and for summary judgment. ALFREDO WESLEY ("Respondent") cross-moves for an Order dismissing the Notice of Petition and Petition on the grounds, inter alia, that Petitioner lacks subject matter and personal jurisdiction.

The underlying superintendent holdover proceeding was commenced by Petitioner to recover possession of property described as all rooms, in the premises known as and located at 766 Ocean Avenue, Apt. No.D, County of Kings in the City of New York ("Subject Premises") from Respondent. A Verified Answer and Counterclaim was interposed with affirmative defenses, including that the Subject Premises is not exempt from the Rent Stabilization Law and Code and retaliatory eviction. Respondent also counterclaims seeking compensation for breach of the warranty of habitability.

In support of the instant motion, Petitioner claims that the caption incorrectly lists its name as "H & H Realty LLC" as a result of a clerical error in drafting the pleadings. Petitioner requests that the caption and all pleadings be corrected and amended to its proper name, "H & H Realty Management LLC." It maintains that the error did not prejudice Respondent's defense.

To support summary judgment, Petitioner annexes an affidavit from Haskel Jacobs ("Mr. Jacobs"), its principal which states, that in or about December 2006, Respondent was hired as the superintendent to clean and make minor repairs in the building. Mr. Jacobs indicates that Respondent entered into possession of the Subject Premises as an incident to employment by Petitioner. Respondent neither had a lease nor paid rent/use and occupancy.

Mr. Jacobs recounts that a termination letter, effective October 13, 2010,was hand delivered to Respondent. He was also informed by phone, and mailed a second notice by certified mail, return receipt requested. Since he was terminated, Mr. Jacob avers that he must now vacate the Subject Premises. He adds that the breach of the warranty of habitability defense is "patently ludicrous," as it was Respondent's duty to maintain the premises.

Petitioner responds to the personal jurisdiction defense by arguing that it was not required to

serve a predicate notice and to the affirmative defenses by asserting that the Rent Stabilization Law is inapplicable to housing occupied by superintendents. Petitioner further proclaims that since there is no landlord-tenant relationship, Respondent's retaliatory eviction defense and counterclaim should be dismissed.

In his cross-motion, Respondent argues that he is a rent-stabilized tenant in a residential

apartment; thus, this proceeding was improperly commenced in the commercial part of the court. [*2]Respondent annexes copies of rent registration documents from the New York State Division of Housing Community and Renewal ("DHCR"), to establish that he lives in a rent-stabilized unit. He also asserts that the status of his termination has not been resolved because he has a pending complaint before the New York State Department of Labor ("Department of Labor").

Lastly, Respondent requests a traverse hearing because he was not served a termination notice, and claims improper service of the pleadings. He adds that since the case caption is incorrect, the pleadings should be dismissed.

Petitioner, in opposition, argues that service of the pleadings was not challenged with the

requisite specificity, in either Respondent's Verified Answer or in a preanswer motion to dismiss. It further avers that the pending complaint before the Department of Labor, has no bearing on this matter, as it will not restore him to the position.

Respondent, in rebuttal, restates his arguments.

It is well settled that leave to amend pleadings "shall be freely given" (CPLR §3025(b)).

However, courts consider whether the proposed amendment has merit, and if there will be significant prejudice or surprise to the opposing party (see Zito v. County of Suffolk, 2011 NY Slip Op 1021 [2nd Dept 2011]; Edwenald Contracting Co. v. New York, 60 NY2d 957 [1983]).

In the instant case, Petitioner seeks to amend the caption and pleadings by including the word, "Management," in its name. Petitioner annexes a copy of the deed to its application, which reflects that its proper name is H & H Realty Management LLC. Since Respondent does not demonstrate that he will be prejudiced or surprised by the proposed amendment, this branch of Petitioner's motion is granted.

Turning to Respondent's defenses, courts hold that a defense of lack of personal jurisdiction is waived, if it is not asserted with specificity in an Answer or a preanswer motion to dismiss (Hypo Bank Claims Group, Inc. v. Am. Stock Transfer & Trust Co., 2004 NY Slip Op 50974U [Sup Ct, NY Cty 2004]; see also Carrenard v. Mass, 11 AD3d 501 [2d Dept 2004]). Similarly, CPLR §3211(e) provides that within sixty days of serving an Answer, that alleges improper service of the pleadings, the Respondent must move to dismiss on that ground or the defense is deemed waived (Teachers Fed. Credit Union v. Jones, 2009 NY Slip Op 50967U [App Term, 2nd Dept 2009]).

Here, Respondent claims improper service, but he did not plead it with specificity in the

Verified Answer or in a motion to dismiss. As a result, this Court finds that Respondent has waived the defense. Even assuming arguendo, that Respondent preserved his defense that he was not served a predicate notice, RPAPL §713(11), in pertinent part, provides:

713. GROUNDS WHERE NO LANDLORD-TENANT RELATIONSHIP EXISTS.

A special proceeding may be maintained under this article after a ten-day notice to quit has been served upon the respondent in the manner prescribed in section 735, upon the following grounds:

11. The person in possession entered into possession as an incident to employment by petitioner, and the time agreed upon for such possession has expired or, if no such time was agreed upon, the employment has been terminated; no notice to quit shall be required in order to maintain the proceeding under this subdivision [emphasis added]. [*3]

Applying the above statutory provision, Respondent was hired by Petitioner as a superintendent,

and lived on the premises to perform his duties. It is undisputed that Respondent did not have a lease

agreement or pay rent. Consequently, this Court determines that there was no landlord-tenant

relationship, and that Respondent's possession was an incident to his employment. Moreover, contrary to Respondent's contentions, RPAPL §713(11) provides that Petitioner is not required to serve a notice to quit, to terminate Respondent's employment and recover possession.

In his cross-motion, Respondent annexes copies of rent registration documents, purportedly

from DHCR, as proof that he is a rent stabilized tenant. A careful examination of the records reveals that they are xeroxed copies and are uncertified. CPLR §4518(c) provides that records from the state are "admissible in evidence under this rule and are prima facie evidence of the facts contained, provided they bear a certification or authentication by the head of the [...] department or bureau [...] of the state [...]." Here, Respondent fails to lay a proper evidentiary foundation for the documents.

Most significantly, housing accommodations occupied by a superintendent is exempt from the Rent Stabilization Law (see 9 NYCRR 2500.9(o)). Thus, this Court concludes that Respondent's first affirmative defense, alleging protection under the statute, is unpersuasive.

With respect to the affirmative defense of retaliatory eviction, RPL §223-B(1)(a) prohibits a landlord's commencement of a summary proceeding in retaliation for a tenant's "good faith complaint [...] to a governmental authority of the landlord's alleged violation of any health or safety law, regulation, code, or ordinance, or any law or regulation which has as its objective the regulation of premises used for dwelling purposes [...]."

Respondent submits, in his cross-motion, a copy of a letter from the Department of Labor,

which acknowledges receipt of Respondent's recently filed complaint, and states that an investigation was pending. The basis for the complaint is not stated. Moreover, the statute specifically makes reference to parties that have a landlord-tenant relationship. As a result, this Court finds that Respondent's retaliatory eviction defense has not been established.

Lastly, RPL §235-B(1), addresses breach of the warranty of habitability, the final

affirmative defense, as follows:

In every written or oral lease or rental agreement for residential premises the landlord or lessor shall be deemed to covenant and warrant that the premises so leased or rented and all areas used in connection therewith in common with other tenants or residents are fit for human habitation and for the uses reasonably intended by the parties and that the occupants of such premises shall not be subjected to any conditions which would be dangerous, hazardous or detrimental to their life, health or safety [...].

To buttress his defense, Respondent annexes a printout from the New York City Department

of Housing Preservation and Development ("HPD"), which reports multiple housing violations at the Subject Premises. However, Respondent fails to lay a proper foundation for the document, which [*4]is neither certified nor authenticated (see CPLR §4518(c)). The counterclaim is also unsubstantiated. Furthermore, this Court finds Respondent's allegation to be incredulous, given his responsibilities as a superintendent.

Accordingly, based upon the above, Petitioner's motion for leave to amend the caption and

for summary judgment, dismissing the defenses and counterclaim is granted. The case caption and all pleadings are amended for Petitioner's name to read as follows: "H & H REALTY MANAGEMENT, LLC." Respondent's cross-motion to dismiss is denied in its entirety.

All other relief, requested and not specifically mentioned, has been examined and found to be unmeritorious.

Petitioner is awarded a final judgment of possession, the warrant of eviction shall issue

forthwith, execution is stayed through June 30, 2011.

This shall be the Decision and Order of the Court.

_______________________

DateHON. CAROLYN E. WADE

Judge, Civil Court