Recitation, as required by CPLR §2219(a), of the papers considered in the review of this motion:

Papers considered: (NYSCEF Doc Nos. 10 through 17, 20 through 27 and 28)

This is a post foreclosure holdover proceeding commenced pursuant to RPAPL §713(5). Respondent Jacqueline Mendoza (hereinafter "Respondent Mendoza") was, at one point, fee owner of the subject premises before its sale in or about 2006. (NYSCEF Doc. No. 14 at ¶¶ 3, 6)^[FN1] . The Petitioner filed the pleadings, along with proof of service for the predicate ten-day notice to quit, on February 13, 2024. (NYSCEF Doc. Nos. 1-3). The matter was calendared for its first appearance on October 1, 2024. Thereafter, on September 23, 2024, the Petitioner filed an affidavit of service of the petition and notice of petition. (NYSCEF Doc. No. 6). On October 1, 2024, Respondent Mendoza appeared and went through the Court's intake process with the legal services provider for the day. CAMBA legal services subsequently filed a notice of appearance on behalf of Respondent Mendoza, as she is the only Respondent who has appeared in this proceeding. Counsel for Respondent Mendoza filed a motion to dismiss pursuant to CPLR §3211(a)(7), on the basis that the Petitioner relied on a stale predicate notice when it commenced this case or, seeking in the alternative, leave to file an answer. Petitioner in response submitted its opposition and cross-moved to amend the petition pursuant to CPLR §3025(b). The respective motions were deemed fully submitted after argument on January 27, 2025.

Other Proceedings Between the Parties

It is worth noting that there have been seven other proceedings between the parties. Of these seven other proceedings, there are three that are pertinent to the case at bar and of which the Court takes judicial notice. First, Respondent Mendoza refers the Court to MTGLQ Investors v. Winston Rose et al., (LT-301248-23/KI) and claims that the Petitioner in this proceeding served her the same predicate notice from LT-301248-23/KI, which was ultimately discontinued via stipulation. There is also MTGLQ Investors v. Winston Rose et al., (LT-301243-23/KI) which was dismissed after inquest as the Petitioner had served an outdated notice of petition. Both proceedings were filed on the same day, January 5, 2023, and the only discernable difference is that the former sought possession of the second-floor unit and the latter, possession of the first-floor unit. The case at bar seeks possession of "[u]nit 1 — [f]irst [f]loor" (NYSCEF Doc. No. 1 at ¶ 4) and was filed on February 13, 2024. Also filed on that same day is MTGLQ Investors v. Winston Rose et al., (LT-306597-24/KI), which once again, sought possession of the second-floor unit. Respondent Mendoza is named in all proceedings, although she has asserted in this proceeding that she only occupies the first-floor unit of the subject building. (NYSCEF Doc. No. 14 at ¶ 2).

The question before the Court is whether the Petitioner may substitute its filing of the predicate notice and accompanying affirmations of service after it mistakenly filed an old predicate notice from a prior proceeding? The Court answers this question in the affirmative.

The gravamen of Respondent Mendoza's motion to dismiss is that the petition improperly relies on a stale predicate notice from a prior proceeding, served over a year and a half before Petitioner filed the current proceeding. This argument holds some saliency as Petitioner [*3]conceded that its own exhibit for the predicate notice, dated September 28, 2022, was used in a prior proceeding along with the same affidavits of service. (See, Petitioner's Exhibit A, NYSCEF Doc. No. 3).

In opposition, Petitioner avers that it did in fact serve Respondent Mendoza with a new ten-day notice to quit in this proceeding, as required by RPAPL §713(5), but its failure to file it on NYSCEF was an "inadvertent omission." (NYSCEF Doc. No. 21 at ¶ 43). Petitioner even includes as an exhibit to its cross motion the actual "Ten (10) Day Notice to Quit Possession with Exhibition of Deed" along with affirmations of service and mailing of the same. (Petitioner's Exhibit 2, NYSCEF Doc. No. 23). The affirmations of service and proof of mailing claim that Respondent Mendoza was served with a ten-day notice to quit via conspicuous place service. (Id.) Petitioner additionally cross-moves to amend the Petition insofar as to incorporate and append the correct predicate notice.

Cross Motion

The Court will first address Petitioner's cross motion to amend its pleadings to annex the correct predicate notice and accompanying affirmations pursuant to CPLR §3025(b). This provision of the CPLR permits the amendment of the pleadings, however the "proposed amended petition" does not contain any actual changes to the petition itself, rather it merely swaps out the old predicate notice and accompanying affidavits of service from the prior proceeding with the ten-day notice allegedly served in January 2024 (NYSCEF Doc. No. 26). While CPLR §3025(b) is not applicable here, the Court is empowered to correct the filing error and deem the motion pursuant to CPLR §2001. CPLR § 2001 states, in its entirety:

"Section 2001 - Mistakes, omission, defects and irregularities

At any stage of an action, including the filing of a summons with notice, summons and complaint or petition to commence an action, the court may permit a mistake, omission, defect or irregularity, including the failure to purchase or acquire an index number or other mistake in the filing process, to be corrected, upon such terms as may be just, or, if a substantial right of a party is not prejudiced, the mistake, omission, defect or irregularity shall be disregarded, provided that any applicable fees shall be paid."

"Every Judicial Department has cited to §2001" for the proposition that a "mere irregularity [in a summary proceeding] could be disregarded, rather than [being] . . . a defect requiring dismissal." (Nardeo v. Diaz, 2024 WL 371966 at *3 (Civ. Ct. Bronx Co. Jan. 31, 2024) [citations omitted]). CPLR §2001 also permits the Court to cure technical defects and filing errors or ignore them so long as a substantial right of a party is not prejudiced. (See, Siegel NY Prac. § 6). The statute, in short, provides Courts with discretion to correct or overlook technical non-material defects which occur at commencement, in both filing and service. (Ruffin v. Lion Corp, 15 NY3d 578, 582 [2010]; MacLeod v. County of Nassau, 75 AD3d 57, 60-63 [2d Dept. 2010]).

In the case at bar, the Respondent has not convinced the Court that overlooking Petitioner's filing error impedes a substantial right. Respondent Mendoza merely claims that she has "not been served a termination notice since [ . . . ]" the notices she received in the prior proceeding (NYSCEF Doc. No. 14 at ¶ 16). Denial of a receipt of service, without more, is insufficient to rebut the presumption of service presented by the affirmation of a licensed process server. (Lechner v. Chasin, 57 AD3d 623 (2d Dept. 2008). In any event, the Court need not engage in an analysis of prejudice when it corrects mistakes under CPLR §2001 as the statute [*4]contains bifurcated relief, and an analysis of prejudice is only warranted where a Court decides to disregard a mistake rather than correcting one. (Grskovic v. Holmes, 111 A.D. 234, 243 [2d Dept. 2013]).

Further, and as stated, the Court takes into account that Petitioner commenced two separate proceedings on February 13, 2024: the instant action which seeks possession of the first-floor unit and LT-306597-24/KI, which seeks possession of the second-floor unit. In LT-306597-24/KI, Petitioner filed, as an exhibit, a new ten-day notice to quit in compliance with the law. The fact that the Petitioner, on the very same day, filed the correct predicate notice in LT-306597-24/KI is further indication that the Petitioner's inclusion of an old predicate notice in the case at bar was nothing more than a mistake and a misfiling. The intent of the amendments to CPLR §2001 was to "allow trial courts to fix or, where nonprejudicial, overlook defects in the filing process [.]" (Goldenberg v. Westchester County Health Care Corp., 16 NY3d 323, 327 [2011]). The Court elects to do so here and corrects Petitioner's misfiling.

Respondent's Motion

As the Court will correct Petitioner's misfiling of the predicate notice and affirmations of service, it will not address the merits of Respondent's motion to dismiss as it is now moot. The Court does, however, grant the branch of Respondent's relief which seeks to interpose an answer and deems Respondent's proposed answer (NYSCEF Doc. No. 17), as served and filed.

Accordingly, for the reasons stated above it is:

ORDERED that Respondent Mendoza's motion is granted only to the extent that the proposed answer (NYSCEF Doc. No. 17) is deemed served and filed; it is further

ORDERED that the rest of Respondent's relief pursuant to CPLR § 3211(a)(7) is denied; it is further

ORDERED that Petitioner's cross motion pursuant to CPLR 3025(b) is denied; it is further

ORDERED that the Court, pursuant to CPLR §2001, substitutes Petitioner's "Exhibit A" (NYSCEF Doc. 3) with Petitioner's "Exhibit 2" (NYSCEF Doc. 23) and deemed served and filed nunc pro tunc, and it is further

ORDERED that this matter shall be scheduled for settlement or trial on March 27, 2025, at 9:30 am.

This constitutes the decision/order of the Court.