On April 15, 2010 petitioner commenced a summary proceeding in the Gouverneur Town Court to recover possession of real property, pursuant to Real Property Actions and Proceedings Law § 701. The petition recites that petitioner is the landlord, and respondent the tenant of Apartment No. 2, 37 Sterling Street, Gouverneur, New York.

The petition further states that on October 5, 2009 petitioner served respondent with a written notice effective March 8, 2010 terminating the month to month tenancy. Real Property Law § 232-b provides that a month to month tenancy of premises outside the City of New York may be terminated by either party giving the other one month notice of the termination. The termination notice, attached to the petition, does not indicate whether the lease was oral or written, and recites that the reason for the termination is that petitioner wanted to resume use of the premises as a single family occupancy unit. There is no claim of late payment of rent or failure to pay rent. RPAPL § 741 requires that a petition be verified in a proceeding to recover possession of real property. Here, petitioner signed an acknowledgment at the end of the petition, but there is no verification of the truth of the allegations.

On April 19, 2010, the date designated in the petition for respondent's service of any answering papers, respondent filed a motion pursuant to CPLR 408 for permission to conduct discovery. On the same date respondent served and filed an answer and counterclaim, both of which were also unverified. The first purported defense is that respondent says he was a tenant under an oral lease agreement, whereas ¶ 2 of the petition alleged an oral month to month tenancy. The second defense asserts that respondent never received the written notice to quit the premises, and petitioner did not submit proof of service of the notice to the court. The remaining defenses relate to claimed retaliatory actions attributed to the landlord or his wife, and respondent sought $2,500 in money damages for what respondent characterizes as a retaliatory eviction.

On April 22, 2010 respondent moved to dismiss the petition for insufficiency, noting that [*2]the petition was unverified, and that the petition failed to allege personal service (or provide evidence of such service) of the 30-day notice of termination.

On April 29, 2010 petitioner filed an amended verified petition, returnable on May 6, 2010. The amended petition was verified by petitioner, and provided additional detail concerning the landlord-tenant relationship. In addition, the amended verified petition states that petitioner mailed the termination notice together with an explanatory letter, both attached as exhibits to the amended petition. The amended petition further recites that the termination deadline had passed and that respondent had not vacated the premises. The amended petition asks for a judgment awarding petitioner possession of the premises, together with holdover rent at the previous rental rate. On April 29, 2010 respondent also filed a reply to the counterclaim incorporated in the answer to the original petition.

On April 30, 2010 respondent filed a "Notice of Motion objection to unauthorized amendment," objecting to the timing of the amended petition, complaining that petitioner did not first seek leave of court, and further objecting to the request for attorney fees. On the same day, petitioner filed opposing papers in response to the motion. On May 4, 2010 counsel for petitioner filed an affidavit objecting to the untimeliness of respondent's motion.

On May 3, 2010 respondent filed a motion seeking an order "quashing the late filing of petitioner reply," and finding petitioner in default on the counterclaim. On May 4, 2010 respondent filed a motion for change of venue.

The case came on for trial on May 6, 2010. All pending motions were denied. The trial court (Riordan, J.) heard testimony from petitioner establishing his oral lease of the upstairs apartment to respondent in July 2005 at the monthly rental of $200. Petitioner testified that he wanted to resume using the home as a single family residence, and sent respondent a letter terminating the lease and requiring that respondent vacate the premises by March 8, 2010, which he later extended, as a courtesy, to April 7, 2010. Respondent testified that he believed he was being railroaded by the court and plaintiff's attorney. The court's trial notes state that respondent displayed a belligerent attitude; that he had to be disciplined numerous times; and that respondent said he had not spoken to petitioner since May 2009, despite living upstairs in the same building.

The court granted judgment in favor of petitioner. Counsel for petitioner submitted an eviction warrant, which the court signed. On May 7, 2010 the court belatedly found the motion for change of venue, which it denied by letter on the same date. The warrant directed the Sheriff to remove respondent from the premises.

Respondent filed with Town Court a notice of appeal to County Court on May 6, 2010. On May 14, 2010 respondent prepared and filed an "affidavit of errors" (not used in a civil appeal) and also requested that the trial court settle the record for appeal. This notice/request was served on petitioner's attorney. On May 18, 2010, petitioner's counsel filed a request for audio transcripts or recordings in order to continue in response to the appeal. On the same date, counsel served and filed an attorney's affidavit in response to the affidavit of errors.

Thereafter, respondent attempted to move in County Court for a stay of the eviction warrant, but the papers were returned to him because they were not in proper form. Thereafter, on May 18, 2010 petitioner's attorney filed papers in this court, opposing the stay on the grounds that the request did not address either the statutory factors required to be alleged for a discretionary stay under RPAPL § 751(4)(a) or the general stay pending appeal under CPLR [*3]5519(a)(6). County Court did not issue a stay. On May 24, 2010 the Sheriff executed the warrant of eviction, removing respondent from the premises.

In an August 3, 2010 letter the trial court clerk provided both parties with the minutes of the trial and the basis for the earlier denial of the motions. On August 10, 2010 respondent wrote to the court and opposing counsel expressing objections to portions of the court's trial minutes. On several occasions between September 28, 2010 and October 12, 2010 respondent contacted this court about his objections to the record, and this court advised as to the timetable and procedure for perfecting the appeal.

Respondent-appellant filed his brief with this court on November 3, 2010, together with his own version of the record on appeal, captioned "Appellant Record." The matter was noticed for argument on November 22, 2010. At the request of petitioner-respondent's counsel, an extension was granted until December 15, 2010 for the filing of their responding brief, which was received in Chambers on December 15, 2010.

Appellant first claims error in the trial court having referred the case for possible mediation before trial. Appellant objected and refused to participate, as was his right. The court then scheduled the matter for trial on May 6, 2010. In particular, appellant argues that the mediation referral was not in compliance with the rules under Judiciary Law §849-b(5). Appellant chooses to characterize this action as judicial misconduct by the trial court. Appellant continues this argument by mentioning what he calls ex parte communication by the trial court to each of the parties in separate but identical pre-trial letters.

Appellant's next argument is that because of the trial court's alleged error in allowing the filing of the amended petition, appellant believes that he is entitled to have all orders of the trial court, together with its judgment and warrant of eviction, vacated. The argument continues with the claim that the trial court failed to prepare an adequate record on appeal containing a summary of the evidence, and also failed to oversee the preparation of a transcript of the trial based on digital recordings. Appellant argues that because of the lack of a transcript no meaningful appellate review can occur.

In response, petitioner-respondent's brief alleges (1) that since no mediation occurred, and the case was tried by the court, there was no error relating to the mediation issue; (2) the appeal is moot because respondent-appellant vacated the premises; (3) there was no ex parte communication by the court with any of the parties, as is borne out by the record.

The trial court's civil docket, included in the record on appeal, shows that no money damages or attorney fees were awarded. The judgment has been fully implemented, since respondent-appellant has vacated the premises.

Although a respondent may interpose a counterclaim in a summary holdover eviction proceeding for retaliatory eviction, as permitted by RPL § 223-b (5), respondent-appellant's claims in this case do not meet the statutory criteria for such a claim. That statute is designed to protect a tenant in a situation where the tenant has complained to a governmental authority about violations of the housing code or defective conditions in the leased premises, after which the landlord, in apparent retaliation, evicts the complaining tenant. There are no facts in the record supporting such a claim.

The trial court did not err in denying disclosure. Because a summary proceeding is, by definition, a special proceeding, leave of court is required for all disclosure proceedings. CPLR [*4]408, RPAPL §701, discussed in 3 Rasch, New York Landlord and Tenant, Including Summary Proceedings, §44.1 (4th Ed.). Here there was no need for disclosure proceedings since the case involved a simple apartment rental under an oral month-to-month tenancy, and the termination was based on a 30-day notice. Under those circumstances the landlord's reasons for terminating the lease are irrelevant.

The trial court did not err in permitting petitioner to interpose an amended petition to correct evident defects in the initial petition. The record shows no prejudice to respondent arising out of the amended petition being filed. Indeed, if anything, he gained additional time before the court was able to reach the merits of the case, and that appears to have been his primary purpose all along. While for some years there was a view among the courts that the pleading requirements for summary proceedings are to be strictly construed, that view has yielded in recent years to the view that these proceedings should be treated like other civil proceedings, where amendments are permitted in the absence of any prejudice. See, Finkelstein & Ferrara, Landlord and Tenant Practice in New York, §15:402, "Other jurisdictional' objections: pleading-related defects," citing Lanz v. Lifrieri, 104 AD2d 400 [2nd Dept 1984]; Birchwood Towers No.2 Associates v Schwartz, 98 AD2d 699 [2nd Dept 1983] and other cases cited in that section of the treatise.

While respondent-appellant tried to argue that petitioner-respondent's law firm was conflicted out ofhandling this case because one of the firm's attorneys represents the Town of Gouverneur in which the trial court sits, the court correctly ruled that there was no merit to this claim on the facts of this case.

Real Property Actions and Proceedings Law § 701(2) requires that the venue of the proceeding be in the municipality in which the premises are located. The court therefore correctly denied the motion to change venue. Moreover, there was no authority for such a motion.

As noted by the court's July 19, 2010 letter to the parties, no digital recording of the proceedings was available because the recorder was being repaired. The court therefore properly used the alternative method of preparing minutes, as directed by UJCA §1704(a).

Since the testimony as reflected in the court's minutes supports the judgment of eviction, and because there were no jurisdictional errors in the proceedings, the judgment of the Town Court of the Town of Gouverneur is hereby affirmed, without costs. So ordered.

Enter.

Dated: June 21, 2011

____________________________________

JEROME J. RICHARDS

Judge of County Court