Civil Court of the City of New York, Queens County, December 22, 2025

OPINION OF THE COURT

Shorab Ibrahim, J.

After argument heard on December 2, 2025, the court finds as follows:

Relevant Facts and Procedural History

The petitioner in this holdover proceeding alleges it is a small landlord as defined in the Good Cause Eviction Law (GCEL) and that it served a 90-day notice terminating respondents' {**88 Misc 3d at 1117}right to occupy the subject premises (see NY St Cts Elec Filing [NYSCEF] Doc No. 1). Only respondent Fernandez has appeared. She now moves to dismiss the proceeding on several grounds.

First, respondent argues that petitioner, a limited liability company (LLC), failed to comply with the Limited Liability Company Law requiring publication of articles of organization and filing proof of same with the Department of State. This failure, respondent argues, means that petitioner cannot maintain this proceeding.

Next, respondent argues that the property sought to be recovered is not properly identified. Respondent alleges she rents a single room in the basement space and other occupants rent other rooms in the basement.

Respondent also argues that petitioner does not comply with GCEL's requirement that a "small [*2]landlord" provide the name of each owner of the subject premises and the number of other units (and their addresses) by each owner.

Finally, respondent argues that petitioner does not qualify for the "small landlord" exception to GCEL because its principal owns at least 11 units.

Petitioner submits an affidavit of publication that states that the LLC met the publication requirement in December 2024 (see NYSCEF Doc No. 18). As to description of the subject basement apartment, petitioner's agent (Vaughn) states it is one basement apartment, and the named respondents reside there. Vaughn also states petitioner owns just eight units in total, listing each address and number of units therein. Finally, petitioner avers that it provided all information required by GCEL in the predicate notice and pleadings (see NYSCEF Doc No. 22).

In reply, respondent argues that petitioner filed proof of publication with the Department of State in August 2025, well after it commenced this case. Respondent reiterates its other arguments and argues that the court must disregard the Vaughn affirmation for its failure to comply with CPLR 2106.

Discussion

Failure to Comply with the Limited Liability Company Law

New York's Limited Liability Company Law requires that the LLC publish notice of formation and file proof of such publication with the Department of State (see Limited Liability {**88 Misc 3d at 1118}Company Law § 206 [a]). Failure to timely comply "suspend[s]" the LLC's ability "to carry on, conduct or transact any business in" New York and precludes the LLC from maintaining a special proceeding (see id.; Small Step Day Care, LLC v Broadway Bushwick Bldrs., L.P., 137 AD3d 1102, 1103 [2d Dept 2016]).

Critically, section 206 (a) also states, in relevant part,

"If, at any time following the suspension of a limited liability company's authority to carry on, conduct or transact business in this state pursuant to this subdivision, such limited liability company shall cause proof of publication in substantial compliance with the provisions (other than the one hundred twenty day period) of this subdivision, consisting of the certificate of publication of the limited liability company with the affidavits of publication of the newspapers annexed thereto, to be filed with the department of state, such suspension of such limited liability company's authority to carry on, conduct or transact business shall be annulled" (emphasis added).

Annulment is "[t]he act of nullifying or making void" (Black's Law Dictionary [7th ed 1999], annulment). In a marriage context, where the term is most used, an annulment voids the marriage from inception, making it as though the couple never married (see Rubin v Joseph, 215 App Div 91, 94 [2d Dept 1926]).

When something is nullified, it is made void or invalid (Black's Law Dictionary [7th ed]). Something annulled or voided has no legal effect (see id.; Sang Moo Cho v North Shore Flushing, 107 Misc 2d 1098, 1100 [Civ Ct, Queens County 1981]).

It follows that when an LLC eventually complies with the filing requirement, all suspensions, including the ability to maintain a civil proceeding, are voided.

To hold otherwise would render the legislature's use of the word "annulled" superfluous. Doing so would run afoul of basic statutory construction.

"It is well settled that in the interpretation of a statute we must assume that the Legislature did not deliberately place a phrase in the statute which was intended to serve no [*3]purpose and each word must be read and given a distinct and consistent meaning" (Matter of Rodriguez v Perales, 86 NY2d 361, 366 [1995] [ellipsis omitted]). Furthermore, where language "is {**88 Misc 3d at 1119}clear and unambiguous, the court should construe it so as to give effect to the plain meaning of the words used" (see Buchbinder Tunick & Co. v Tax Appeals Trib. of City of N.Y., 100 NY2d 389, 393 [2003]).

Per the affidavit of publication, petitioner was formed on or about June 27, 2022, and publication not completed until more than two years later on December 4, 2024 (see NYSCEF Doc No. 18). Thus, petitioner clearly published (very) late. Filing with the Department of State occurred even later.

Respondent cites to several cases where the court dismissed the proceeding for petitioner's failure to comply with section 206 publishing requirements.

In 109 Equities LLC v Smit (2022 WL 17589545, 2022 NY Misc LEXIS 89520 [Civ Ct, Queens County, Nov. 22, 2022, No. L&T 73592/2019]), the court cited to section 206 (a), and to Small Step Day Care, LLC v Broadway Bushwick Bldrs., L.P. (137 AD3d 1102 [2d Dept 2016]), but did not grapple with what it means when something is "annulled."

Similarly, the petitioner in Hull Unique Equities LLC v Boone (83 Misc 3d 1297[A], 2024 NY Slip Op 51311[U] [Civ Ct, Kings County 2024]) provided no proof of (late) compliance with the publication requirement and the court did not address the statute's use of "annulled."

In One Stone Lending LLC v Alta Operations, LLC (2020 NY Slip Op 30722[U] [Sup Ct, NY County 2020]), the plaintiff cured after the case commenced. The court focused on not wanting to set bad precedent by allowing post case commencement cure. It did not address the statute's "annulled" language.

Other courts have held the failure to publish is curable and, in fact, subsequent compliance with section 206 "warrants nunc pro tunc application averting dismissal" (2004 McDonald Ave. Realty, LLC v 2004 McDonald Ave. Corp., 25 Misc 3d 1204[A], 2007 NY Slip Op 52638[U], *3 [Sup Ct, Kings County 2007], affd 50 AD3d 1021 [2d Dept 2008]; Acquisition Am. VI, LLC v Lamadore, 5 Misc 3d 461, 462 [Civ Ct, NY County 2004]).

Recently, Judge Cohen similarly held, drawing a parallel between section 206 and Business Corporation Law § 1312 (a) (see Rogers Realty LLC. v Phillip, 87 Misc 3d 1227[A], 2025 NY Slip Op 51705[U], *2 [Civ Ct, Kings County 2025]).

Business Corporation Law § 1312 (a) states that, in relevant part,

"[a] foreign corporation doing business in this state{**88 Misc 3d at 1120} without authority shall not maintain any action or special proceeding in this state unless and until such corporation has been authorized to do business in this state and it has paid to the state all fees and taxes imposed under the tax law or any related statute."

Courts have found that noncompliance with the Business Corporation Law is not a jurisdictional impediment and that the proper course is to allow a cure (see e.g. Horizon Bancorp v Pompee, 82 AD3d 935, 936 [2d Dept 2011]; Lew Beach Co. v Carlson, 77 AD3d 1127, 1128 [3d Dept 2010]; Tri-Terminal Corp. v CITC Indus., 78 AD2d 609, 609 [1st Dept 1980]).

Similarly, foreign LLCs are barred from maintaining proceedings unless they have received certificate of authority to do business in New York (see Limited Liability Company Law § 808 [a]).

These noncompliant foreign LLCs can also cure after commencement of a case (see Matter of Mobilevision Med. Imaging Servs., LLC v Sinai Diagnostic & Interventional Radiology, P.C., 66 AD3d 685, 686 [2d Dept 2009] [petitioner "entitled to a reasonable opportunity to cure its noncompliance with the statute before dismissal of the proceeding should be considered"]; Basile v Mulholland, 73 AD3d 597, 597 [1st Dept 2010] ["plaintiff LLC's failure to obtain a [*4]certificate of authority to do business in New York before initiating the action is not a fatal jurisdictional defect and such certificate has since been obtained"]; OCFBrook Holdings, LLC v TKS Brooklyn Ctr. Holding, LLC, 84 Misc 3d 1234[A], 2024 NY Slip Op 51611[U] [Sup Ct, NY County 2024]).

Smit, Boone and Alta, of course, are not binding precedent. Small Step Day Care, LLC, cited in Smit, is another matter. There, the Appellate Division, Second Department held that the failure to comply with Limited Liability Company Law § 206 precluded bringing the action (see 137 AD3d at 1103). In Small Step, however, there was not even late compliance with the publication requirement (see mem of law in opp of defendant's mot to dismiss in Small Step Day Care, LLC v Broadway Bushwick Bldrs., L.P., 137 AD3d 1102 [2d Dept 2016], available at 2014 WL 12968136).^FN1{**88 Misc 3d at 1121}

The only case cited in Small Step is Barklee Realty Co. v Pataki (309 AD2d 310 [1st Dept 2003]). In upholding the constitutionality of section 206 filing requirements, Barklee mentions Business Corporation Law § 1312, the foreign Limited Liability Company Law, both noted above, and other statutes that require administrative compliance for businesses to have access to the courts.

Upon compliance, the courts have allowed cases to continue even where the business was not in compliance at commencement.

General Business Law § 130, also noted in Barklee, requires any business doing business under an assumed name fulfill several filing requirements. Section 130 (9) bars access to the courts if the business fails to comply. However, "[t]he certificate is not jurisdictional, and may be amended prior to entry of any judgment" (Cohen v OrthoNet N.Y. IPA, Inc., 19 AD3d 261, 261 [1st Dept 2005]; see also Pat Pellegrini Flooring Corp. v Serota, 20 Misc 3d 138[A], 2008 NY Slip Op 51555[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008]).

These regulations all purport to bar noncompliant businesses from accessing the courts. Time and again, however, the courts have held that compliance can be accomplished after the fact (of commencing a case). If the goal is compliance, this makes perfect sense. Indeed, in Barklee, the Court notes that section 206, "which conditions the maintenance of an action or special proceeding on compliance with the publication requirement, provides an incentive to ensure that the required disclosure will be made" (see 309 AD2d at 316 [emphasis added]).

In other words, once the compliance goal is reached, businesses should face no further penalty, including having to recommence proceedings.

This concept is not foreign to the Housing Court. Multiple Dwelling Law § 325 and Administrative Code of the City of New York § 27-2097 require a current multiple dwelling registration (MDR) for a landlord to recover rent. (see Multiple Dwelling Law § 325 [2]; 151 Daniel Low, LLC v Gassab, 43 Misc 3d 134[A], 2014 NY Slip Op 50637[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]).

In Chan v Adossa (195 Misc 2d 590, 593 [App Term, 2d Dept 2003]), the court notes that the legislative intent of barring the recovery of rent during the period of noncompliance "was to foster compliance." Thus, the lack of registration, even at commencement{**88 Misc 3d at 1122} of a nonpayment proceeding, does not require dismissal, so long as the goal of compliance is achieved (see id.).

As petitioner has both published and filed proof of same with the Department of State, it has the capacity to maintain this proceeding and the case can move forward (see NYSCEF Doc No. 18). Dismissal on this ground is denied.

[*5]Failure to Comply with CPLR 2106

Before moving on to respondent's other arguments in favor of dismissal, the court must first address respondent's claim that the Vaughn affirmation (see NYSCEF Doc Nos. 17, 22) should be disregarded for its noncompliance with CPLR 2106.

Section 2106 requires certain language in affirmations submitted in lieu of an affidavit. It is undisputed that the initial Vaughn affirmation does not have this language (see NYSCEF Doc No. 17). As such, it is a nullity (see Great Lakes Ins. SE v American S.S. Owners Mut. Protection & Indem. Assn. Inc., 228 AD3d 429, 429 [1st Dept 2024]; Lewis v Hibbert, 87 Misc 3d 129[A], 2025 NY Slip Op 51592[U], *1 [App Term, 1st Dept 2025]).

Petitioner, however, has moved to correct this error (see NYSCEF Doc Nos. 20-22). Prevailing case law allows correction by amendment or in reply (see Kallo v Kane St. Synagogue, 241 AD3d 522, 524 [2d Dept 2025] [CPLR 2001 allows court to overlook initial noncompliance with CPLR 2106 if correction made in reply]). Consequently, petitioner's motion to correct the Vaughn affirmation so that it complies with CPLR 2106 is granted.^FN2

At this point the court must mention that respondent's own affirmation runs afoul of section 2106 requirements. Indeed, while respondent submitted two affirmations,^FN3 both submissions are noncompliant with section 2106 (see NYSCEF Doc{**88 Misc 3d at 1123} Nos. 10, 16). As such, it is respondent's affirmation that was, and remains, a nullity.^FN4

Misdescription of the Premises

There being no admissible affirmation from respondent, the allegation that the premises are misdescribed has no support. If the court were to overlook the section 2106 violation, the outcome is the same. Respondent's allegation of independent tenancies in the basement is entirely conclusory and self-serving, with no independent proof of same (see NYSCEF Doc No. 16). Petitioner, on the other hand, affirms that the premises are one basement apartment. At best this is a triable issue.

The court notes that nowhere does respondent claim that the description of the premises in the pleadings misled her. In any event, this type of alleged misdescription, if true, is amendable (see 191 Chrystie, LLC v Sonnier, 21 Misc 3d 144[A], 2008 NY Slip Op 52513[U] [App Term, 1st Dept 2008] [misdescription amendable where tenant not materially misled, confused, or hindered in the preparation of his defense]; see also 179 St Realty LLC v Morales, 83 Misc 3d 1201[A], 2024 NY Slip Op 50624[U], *2 [Civ Ct, Queens County 2024] [description of "Apartment Basement" when there were two basement [*6]apartments could be amended]).^FN5

Petitioner Owns More than 10 Units

To take advantage of the "small landlord" exception to GCEL, a landlord cannot own more than 10 units in New York (see Real Property Law § 211 [3] [a]; Munjal v Ziebke, 87 Misc 3d 956 [Civ Ct, NY County 2025]). The argument that petitioner owns more than 10 units rests on respondent's unsupported allegation that the subject premises have five independent units (see NYSCEF Doc No. 16). Thus, even if the court were to consider the defective affirmation, respondent does not establish that petitioner owns more than 10 units.

Petitioner's principal affirms that he owns a total of eight units, including the subject basement unit. At best, this is a{**88 Misc 3d at 1124} triable issue (see Sokol v Leader, 74 AD3d 1180, 1182 [2d Dept 2010] [affidavits "will almost never warrant dismissal under CPLR 3211 unless they 'establish conclusively that (the plaintiff) has no cause of action' "], quoting Rovello v Orofino Realty Co., 40 NY2d 633, 636 [1976]; Lawrence v Graubard Miller, 11 NY3d 588, 595 [2008]; Bianco v Law Offs. of Yuri Prakhin, 189 AD3d 1326 [2d Dept 2020]).

Failure to Name All Owners and Their Properties

When a petitioner claims the "small landlord" exception to GCEL, they are required to provide the name of each owner of the subject property, the number of other units owned and the address of these other units (see Real Property Law § 214 [1]; Parco v Fisch, 87 Misc 3d 1231[A], 2025 NY Slip Op 51752[U] [Civ Ct, Kings County 2025]).

Here, the predicate notice and the petition both do not provide this additional information, while claiming the exception. Respondent insists that dismissal is required because the information was not in the predicate notice, citing to two unpublished cases (see NYSCEF Doc No. 11 para 47).

These cases are distinguishable.^FN6Charles v Green (index No. 001620-24/KI) is not relevant. The order dismissing the case is two sentences long (see NYSCEF Doc No. 7, dismissal order, in Charles v Green, Civ Ct, Kings County, index No. 001620-24/KI). It appears that there was no claimed exception to GCEL in that case and that no GCEL required rider was served (see NYSCEF Doc No. 2, hold-over petition, in Charles v Green, Civ Ct, Kings County, index No. 001620-24/KI). 66-86 80th St. LLC v Robles (index No. LT-315174-24/QU) is also of little use as the predicate notice there does not claim any exception to GCEL (see NYSCEF Doc No. 5, predicate notice, in 66-86 80th St. LLC v Robles, Civ Ct, Queens County, index No. LT-315174-24/QU).

The gravamen of respondent's argument is that the predicate notice must list the required additional information. The court, however, will not read into the statute words that are not there (see People v Corr, 42 NY3d 668, 673 [2024]). The legislature saw fit to amend RPAPL 741 to require that the additional information be incorporated or appended to petitions (see RPAPL 741 [5-b]), but was not similarly unequivocal about predicate notices.{**88 Misc 3d at 1125}

As such, the failure to include this additional information in the predicate notice is not grounds for dismissal.^FN7

Respondent also moves to dismiss for petitioner's failure to include the additional [*7]information in the petition.

A petition that fails to comply with GCEL's pleading requirements can be amended (see Inga v Revenco, 86 Misc 3d 1210[A], 2025 NY Slip Op 50911[U], *4-5 [Civ Ct, Kings County 2025]; Sin Hang Lau v Yun He Zheng, 86 Misc 3d 859, 863-864 [Civ Ct, Kings County 2025]; Barretta v Parilla, 85 Misc 3d 1222[A], 2025 NY Slip Op 50253[U], *2 [Civ Ct, Queens County 2025]; Parco v Fisch, 87 Misc 3d 1231[A], 2025 NY Slip Op 51752[U]). Even sua sponte amendment after trial has been endorsed (see 47-05 Ctr. SPE L.L.C. v Hack, 87 Misc 3d 787, 789 n 1 [Civ Ct, Queens County 2025]).

Here, petitioner has provided the additional information, albeit late. In the absence of any prejudice this is allowed.^FN8 Respondent, for her part, does not claim any prejudice, even if the court were to credit her affirmation (see 37-20 104th St. v Sanchez, 76 Misc 3d 23, 25-26 [App Term, 2d Dept, 2d, 11th, & 13th Jud Dists 2022] [finding no prejudice where the tenant was prepared to litigate issues]).

To the extent that amendment is required, the court may deem a petition amended (see e.g. Shahid v Guzman, 2 Misc 3d 1, 3 [App Term, 2d Dept, 2d & 11th Jud Dists 2003] [petition "deemed" amended to plead rent stabilization]).

Conclusion

Based on the foregoing, respondent's motion to dismiss the proceeding is denied in all respects. Petitioner's motion to file an amended affirmation that complies with CPLR 2106 is granted. The court sua sponte amends the petition to reflect the other properties owned by petitioner and their addresses.