This case raises the issue of whether a petition can comply with the requirements of RPL §741(3) where its description of the premises adequately apprises the marshal of the physical location of the building but it only describes part of the premises in which the tenant is occupying.

In this summary holdover proceeding, petitioner/landlord 217 Malcolm X Blvd LLC ("petitioner" or "landlord") seeks to recover the premises located at the ground floor of the aforementioned address from the respondent/tenant Naughton Bros. Funeral Home Inc. ("respondent" or "Funeral Home") on the ground that the respondent continues in possession of the premises, without permission of the landlord, after the lease expired on April 30, 2013.[*2]

By motion dated June 12, 2013, respondent moved for summary judgement seeking dismissal of the petition based upon the petitioner's failure to comply with RPAPL §§ 731, 741(2) and (3). Respondent claimed, among other things, that the notice of termination was improperly served, and that the petition failed to accurately describe the respondent's interest in the premises. Respondent also averred that the petitioner had unclean hands because it illegally engaged in self help by partially evicting the respondent from the second floor by discarding respondent's belongings. Finally, respondent argued that the petitioner failed to properly and accurately describe the premises from which removal was sought because the petition failed to also mention the second floor.

Petitioner cross-moved for a final judgement of possession, arguing that the petition was in compliance with the RPAPL §741(3) because it only sought to recover the ground floor of the premises as that was the only portion that the respondent occupied. The petitioner also denied the allegations concerning constructive eviction on the second floor and argued that this issue was "not the subject of this action." The petitioner did not move to amend the petition to include the other floor.

By decision dated September 13, 2013, the Hon. Ingrid Joseph found no merit to respondent's claims that petitioner had failed to comply with RPAPL §731 or 741(2). With respect to respondent's contention that dismissal under Section 741(3) is warranted, Justice Joseph noted that while the petition described the premises as the ground floor at 217 Malcolm X Blvd and petitioner asserted that the leased premises included only the ground floor, respondent maintained that the leased space included both the ground and second floor. As such, Justice Joseph found a material issue of fact precluded the granting of summary judgment and set the case down for hearing to determine whether "the description in the petition accurately describes the premises from which removal is sought." As to respondent's counterclaims on partial constructive eviction, property damage, and illegal partial actual eviction, Justice Joseph found that these claims were not "inextricably linked" to petitioner's main claim for possession and should be addressed in a separate action.

Moshe Simpson testified on behalf of petitioner at the hearing. Simpson bought the property at a foreclosure in September 2012. The property consists of two floors — the ground floor had a commercial certificate of occupancy ("C/O") and was used as a funeral home whereas the second floor had a residential C/O. Upon visiting the property Simpson ascertained the primary means of entry to the second floor was from a second door on the outside of the property. The glass door entrance to the ground floor funeral home was separate from the second outside door to the second floor. The outside door was locked so Mr. Naughton showed him around through the ground floor. Simpson changed the lock on the second outside door soon after he acquired the property. He claims that Naughton never objected to his changing the locks. After the lock was changed, someone placed a wooden stick inside of the residential outside door that precluded Simpson from entering from the outside. Simpson admits that he then gained access to the second floor from the ground floor of the funeral home. [*3]

Petitioner started demolishing the second floor in January 2013 to make renovations but respondent obtained a stop work order on the premises from the Department of Buildings because petitioner did not have permits. Simpson described the second floor as inoperable and looking like it had deteriorated over time. "I don't see how anybody can live there or do anything in that place" (Tr. 27). He saw nothing up there that looked like an office — there were leaks and the whole roof was gone. "Nobody touched the place for years." (Tr 28). The Department of Buildings ultimately rescinded the stop work order but petitioner decided not to do any further work because he was not getting along with Naughton who he was trying to evict from the ground floor. Petitioner wanted to obtain possession of the first floor which spawned the commencement of the instant petition. The funeral home no longer was paying U & O although by operation of law it was a month-month tenant.

Michael Naughton testified that he has operated a funeral home at the premises since 2009. The parlor floor contains chapels and is where the embalming of bodies is done. He maintained an office on the second floor where there was a four line phone system, a computer, a desk and file cabinets. He also stored urns and ashes upstairs. There is access to the upstairs from the ground floor of the funeral home - an inside door leads to a staircase from the ground to the second floor. The demolition of the second floor caused sewage and water to fall into the ground floor which Naughton cleaned up. He then was able to utilize the funeral home again. Before the demolition, Naugthton operated the business from the second floor because that was where the phone lines were. After the demolition, Cablevision rewired all the equipment to the first floor. Naughton also stated that his clients went up to the second floor to pay their bills. Mr Barrett, the prior owner of the premises, testified he had always used both the ground and second floors as a funeral home. Naughton never filed an illegal lock out case when Simpson changed the lock on the outside door because Naughton had access to the second floor from inside the funeral home. Additionally, he changed the lock back on the outside door.

Petitioner contends that there is no confusion under Section 741 (3) since this is not a situation where, for example, the petition improperly describes an office as Lobby 2 when the tenant occupied Lobby I which would cause the marshal to go to the wrong place. Here, the petition clearly states ground floor and when the marshal goes to that address he can easily find and evict the funeral home from the ground floor. Petitioner also contends that since he was already in possession of the second floor at the time of the petition, he need only gain control of the ground floor regardless of whether the funeral home in the past had operated on both floors.

Respondent contends that from time immemorial the funeral home occupied both floors and that the petition is therefore deficient in only describing one floor. He also contends that petitioner's argument is circuitous and begs the point because there was a constructive eviction and this did not negate the point that respondent should be occupying the second floor. He indicated that petitioner came in to demolish three months after they took over. "We still have access to the second floor, we can't just use it properly because they demolished the premises." Therefore, the "premises should have been described as a first and second floor" and the petition must therefore be dismissed (Tr. 12).

At the close of the hearing, this court found that the funeral home did operate on two [*4]floors and that the condition of the second floor of the funeral home as an entity was irrelevant to this determination. It requested that both sides brief the issue of whether the description was sufficiently accurate so that the marshal could find the property and evict the tenant, and also whether the fact that petitioner had obtained possession, rightfully or wrongfully, of the second floor obviated any legal requirement that the petition accurately describe the demised premises.

RPAPL §741(3), entitled "Contents of Petition," mandates that the petition describe the premises from which removal is sought. The petition must accurately describe the "exact location of the premises" in sufficient detail so that a marshal, when executing the warrant of eviction, may locate the premises and effect an eviction without additional information. Sixth St. Community Ctr, Inc. v. Episcopal Social Services, 2008 NY Slip Op 51151(U), 19 Misc 3d 1143(a)(Civil Ct. NY Co. 2008). See, US Airways, Inc v. Everything Yogurt Brands, Inc., 2008 NY Slip Op 50279(U), 18 Misc 3d 136(A) (App. Term, 2nd Dept. 2008); Elul Realty Corp v. Java New York Ltd., 12 Misc 3d 336, 337 (Civ. Ct., Kings Co. 2006). The description of the premises cannot be vague, ambiguous or inaccurate. Sixth Street Community Center, Inc., supra.

A summary proceeding is governed entirely by statute and "there must be strict compliance with the statutory requirements." 300 West Realty Co. v. Wood, 69 Misc 2d 580, 581 ( Civ. Ct NY Co. 1971). Failure to describe the premises in accordance with the mandate of RPAPL §741(3) is grounds for dismissal of the petition, as a defective description "affects the very essence of the proceeding." Papacostopulus v Morrelli, 122 Misc 2d 938 (Civ. Ct. Kings Co. 1984). See, Clarke v Wallace Oil Co. Inc., 284 AD2d 492 (2nd Dept. 2001); US Airways, Inc supra, 18 Misc 3d at 4; Saba Realty Partners LLC v. Apex Limousines Inc, 2011 NY Slip Op 51497(U), 32 Misc 3d 1229(A)(Sup. Ct., Kings Co. 2011). The courts will not allow the petition to be amended unless the problem with the description was of a deminimus or trivial nature. Sixth Street Community Center, supra.

Courts have dismissed petitions when the description of the premises listed an incorrect house number. See, Clarke v. Wallace, supra (the number listed was 457 North Street rather than 475 North Street); Papacostopulos, supra (the number listed was 7913 instead 7905 5th Ave). Similarly, a vague or incomplete description that is not accompanied by a diagram or plans of the floor showing the tenant's exact location will result in a dismissal. See, Sixth St. Community Ctr, Inc. supra (petition erroneously described premises as all rooms in building when petitioner's exhibits revealed that demised premises do not occupy entire building but three rooms on first floor and some storage space in basement); Vornado Two Penn Property, LLC v. XLPC Corp, 2008 NY Slip Op 50138(U), 18 Misc 3d 1119(A) (Civ. Ct., NY Co. 2008) (petition's description as "Two Penn Plaza, portion of the ground floor"as identified by two crosshatched areas in annexed exhibit too vague to alert marshal to the premises that were to be recovered); Elul Realty Corp.,supra (description of "part of the 2nd flr bet. Building A & B, at 14 Whale Square" found inadequate since the store's number or any designation as to the exact address of the store was missing).

In a more analogous case to the instant matter, the court found that the notice of petition [*5]describing the premises as "stores 22-23, C-9, Pt C-33," was not wrong but insufficient since the petition did not describe the stores as actually being on the ground and concourse level, as set forth in the lease, and did not include the diagram denoting the areas in question. Empire State Building Co., v. Progressive Catering Services, Inc.. 2 Misc 3d 545 (Civil Ct., NY Co. 2003) The court noted that part of the confusion was caused by the fact that the stores were located in a large building which had several other stores, and that a designation by letters and numbers "which neither side has argued coincide with interior "addresses" was insufficient to comply with the statute. See also, 272 Sherman, LLC v. Vasquez, 4 Misc 3d 370 (Civil Ct., NY Co. 2004) where the court found the description of the premises as "(a)ll rooms, store # 1, 2 and 3 in a building located at a certain address" insufficient , since the uncertainty as to the location of respondents's premises "risks evictions of other enterprises, unassociated with respondent, operating at one of more of the other three store locations" and thus ordered that the petitio be dismissed. Id at 373.

Conversely, in Strong L.P v. Dakar Restaurant, 2010 NY Slip Op 51304(U), 28 Misc 3d 1213(A) (Civil Ct, Kings Co. 2010) the court found that the rent demand was not defective and complied with RPAPL 711 (2)'s requirement that the premises from which removal is sought be sufficiently described so that the marshal, when executing the warrant of eviction, can locate the premises with out any additional information. There, the rent demand only mentioned the ground floor whereas the lease described the premises as both the ground floor and basement. The inconsistency between the documents was insignificant since it was clear that the respondent tenant had access to and was utilizing the referenced premises in the demand, and that the marshal would have no problem in finding and identifying the restaurant in order to enforce the eviction as there was only one Dakar Restaurant at the address in question.

Here, there is no question that the marshal would be able to locate Naughton Funeral Home located at 217 Malcolm Blvd, ground floor. Nor is there any risk that the marshal would impermissibly evict another business or tenant as no such other entity exists. However, this does not end the inquiry as petitioner, by limiting its request to the ground floor, in essence is seeking to evict part of the respondent's commercial endeavor, as opposed to the whole of the enterprise, which defeats the whole purpose of a notice of eviction. In the apparently one reported case where the petition sought possession of only the first floor of the building, when the respondent actually occupied two floors, the housing court found the petition's partial description of the subject premises to fail to accurately describe the subject premises as required by §741(3) Citibank v. Amadeo, NY L.J., 11/16/94, p. 26 col 1 (Civ. Ct., Kings Co.).

Petitioner's contention that respondent has already been evicted from the second floor so that there is no need to effectuate an eviction from both floors begs the question. See, Sixth Street Community Center, supra (petition dismissed due to the inadequate description of premises despite petitioner's argument that there was no further need to locate the premises to effect an eviction since the respondent had vacated the premises at some point after the petition was served and that petitioner was only seeking a money judgment). Although respondent's claims of constructive eviction and actual partial eviction have been severed, petitioner cannot [*6]engage in self- help and use that argument to circumvent its need to accurately describe all components of the premises from which eviction is sought. It would beg all reason to permit the marshal to evict respondent solely from the ground floor when respondent legally may still have the right to also operate its enterprise from the second floor. A

As such, the petition is dismissed without prejudice. The foregoing shall constitute the Decision, Order and Judgment of the Court.

Dated April 4, 2014 ______________________________

Katherine A. Levine

Acting Justice of the Supreme Court

ASN byin Court