BACKGROUND

This summary holdover proceeding was commenced by SHERMAN NAGLE REALTY CORP. (Petitioner) against RODERICK COPELAND (Respondent), the rent-stabilized tenant of record of 40 Thayer Street, Apt.16, New York, NY 10040(Subject Premises), based on the allegation that Respondent's lease expired and after service of a thirty day notice of termination.

Petitioner issued a thirty day notice of termination dated July 14, 2015 terminating Respondent's tenancy as of August 31, 2015. The petition is dated September 19, 2015, and the proceeding was initially returnable on October 8, 2015. The petition asserts that Respondent had a written lease that expired on April 20, 2015.

Respondent appeared by counsel on November 30, 2015, and stipulated that an answer would be served by December 14, 2015. The proceeding was adjourned to January 8, 2016.

On December 11, 2015, Respondent filed an answer asserting inter alia lack of personal jurisdiction, and other defenses. The first affirmative defense asserted that Petitioner failed to properly serve Respondent with the predicate notice and the notice of petition and petition. That Respondent "... denies conspicuous serve of the Notice of Termination as well as proper service of the Notice and Petition."

On January 8, 2016, the parties stipulated to adjourn the proceeding to February 23, 2016 for a traverse hearing. On February 23, 2016, Respondent moved for leave to conduct discovery, and the parties submitted a stipulation to the court providing that the proceeding was adjourned to March 22, 2016 for a traverse hearing, and that Respondent's motion for discovery would be held in abeyance pending traverse.

The court did not find the stipulation acceptable, and held a conference with the parties on the record, wherein the court stated that Respondent's answer was insufficient to require a traverse hearing and pointing out that the part rules required provided that only the Judge could determine a hearing was required and that the parties could not stipulate to same without leave of court. While the court acknowledged the claim had been asserted in the answer, the court found that the answer merely denied receipt and the propriety of service without specifically contesting the affidavits of service. Based on the foregoing, even though Petitioner had stipulated to set the matter down for a traverse hearing, the court would not accept the stipulation and adjourn it for a hearing.

Based on the court's position, Respondent sought leave to file an amended pleading. The oral application was denied without prejudice to renewal by motion. Petitioner made an application for time to oppose the discovery motion. The court set a schedule for opposition and reply and the proceeding and motion were adjourned to March 22, 2016.

The parties stipulated to a further adjournment to April 15, 2016, for additional papers.

On March 30, 2016, the panties submitted a stipulation withdrawing Respondent's motion for discovery without prejudice.

On April 15, 2016, the court heard argument on the motion to amend and reserved decision.

The proposed amended answer includes two affirmative defenses raising lack of personal jurisdiction. These defenses are asserted with much greater particularity then in the original pleading. There are other differences between the proposed amended answer and the answer originally filed, but Petitioner only opposes the inclusion of the personal jurisdiction defenses. The proposed amended answer asserts service of the predicate notice, which was only done by mail, is defective as a matter of law, and provides details contradicting the alleged delivery of the petition by the process server.

CPLR §3025(b) provides that leave to amend pleadings shall be freely given.

Petitioner argues that Respondent waived jurisdictional defenses pursuant to CPLR§ 3211(e) by failing to include them in the answer.

In fact, the defenses of personal jurisdiction were included in the answer, although it has been held that the defenses is deemed waived if it is not asserted with specificity (Interlink Metals and Chemicals Inc v Kazdan 222 AD2d 55). Even if said defenses had not been included in Respondent's answer, defenses waived under CPLR 3211(e) can nevertheless be interposed with court leave absent prejudice or surprise (Armstrong v Peat, Marwick, Mitchell & Co 150 AD2d 189; Deutsche Bank Trust Company v Cox 110 AD3d 760).

In this case, Petitioner can claim neither prejudice nor surprise as the defenses were asserted, albeit, insufficiently in the initial answer, and but for the court's intervention, Petitioner had stipulated to set the matter down for a traverse hearing.

Moreover, Respondent's claim that pursuant to RPL §232-a service by mail of the termination notice is insufficient as a matter of law clearly has merit.

Based on the foregoing, Respondent's motion to amend is granted. The amended answer is deemed served and filed, and the proceeding is restored to the calendar for all purposes on May 3, 2016 at 9:30 am.

This constitutes the decision and order of the Court.