265 EAST 66TH LLC 265 LLC v. SILBER (2025)

Recitation, as required by CPLR § 2219 (a), of the papers considered in the review of respondent's motion for dismissal, or, in the alternative, permission to file an answer in this proceeding, and petitioner's motion to amend the petition to withdraw certain claims:

NYSCEF Doc Nos. 5 — 21.

Respondent in this nonpayment summary eviction proceeding moves (mot. seq. 02) for dismissal under CPLR § 3211 (a) (7) on the basis of absence of rental agreement at commencement of the proceeding,¹ and on the basis of petition's inclusion of rents subsequent to the rent demand; and under CPLR § 3211 (a) (3) arguing petitioners 265 East 66th LLC and 265 East 66th Hamilton LLC are not the parties to the original lease, which names 265 East 66th Street LLC as the landlord. In the alternative, respondent seeks extension of time to serve and file an answer in this proceeding. Petitioner cross-moves (mot. seq. 03) to amend the petition to withdraw its post-rent demand claims.

Inclusion of Undemanded Rents and Petitioner's Motion to Amend

Respondent moves for dismissal of this nonpayment proceeding based on petition's inclusion of post-rent demand rents. Petitioner cross-moves to amend the petition to drop its claim for un-demanded months.

Respondent relies on RCPI Landmark v. Chasm Lake Mgt. Servs., LLC, 32 Misc 3d 405 [Civ Ct NY Cty 2011], in which a nonpayment petition was dismissed due to its inclusion of post-rent demand rent. The key distinction between RCPI Landmark and the instant proceeding is petitioner's cross-motion to amend the petition to remove the un-demanded months from the petition nunc pro tunc. Respondent argues, in sum and substance, that the inclusion of un-demanded rents in the petition is an unamendable jurisdictional defect requiring dismissal of the proceeding.

Both sides discuss at length cases such 36 Main Realty Corp. v. Wang Law Off., PLLC, 49 Misc 3d 51 [App Term 2d Dept 2015], and JDM Washington St., LLC v. 90 Washington Rest. Assoc., LLC, 36 Misc 3d 769 [Civ Ct NY Cty 2012]. However, at issue in those cases was post-petition amendment to include rents previously not listed in the rent demand. Here, at issue is petitioner's initial inclusion of the un-demanded rents, and petitioner's subsequent motion to withdraw the claim for those rents from its petition.

While certain documents, such as predicate notices, are notoriously unamendable, leave to amend pleadings should be freely granted absent prejudice to the other party (CPLR § 3025(b); Edenwald Contracting Co. v. City of NY, 60 NY2d 957 [1983]; Reyes v. City of New York, 63 AD3d 615, 616 [1st Dept 2009]. Here, petitioner moves to amend its pleading to conform to its rent demand, not the other way around. Accordingly, petitioner's cross-motion (mot. seq. 03) is granted to the extent that petition is amended to remove claims for rent not appearing in the rent demand, and that branch of respondent's motion seeking dismissal based on withdrawn claims is denied.

Standing

Respondent's last basis for seeking dismissal is petitioner's alleged lack of standing to commence this proceeding, arising from a difference between petitioner's name “265 East 66th LLC” and the name allegedly featured on the original lease agreement, describing the landlord as “265 E 66th St. LLC.” While respondent acknowledges that he is not in possession of the original lease agreement, respondent is certain the landlord party to that agreement was “265 E 66th St. LLC,” not petitioner “265 East 66th LLC.” Petitioner opposes respondent's request for dismissal on this basis, arguing that the difference between the two names is an inconsequential typographical error on the original lease document. To further complicate this issue with the nomenclature, the Extension of Lease agreement produced by petitioner in opposition to respondent's (now withdrawn) claim that no lease agreement existed at the time of the proceeding's commencement lists the landlord as “265 East 66th Street LLC,” although respondent does not reference the lease extension agreement in his papers.

Innocent and minimal name discrepancies in pleadings and contracts will not typically invalidate otherwise valid claims (Fa WahMgt., Inc. v Alvarrez, 18 Misc 3d 132(A) (App Term 2nd Dept 2008])² . There is no actual dispute that the entity which entered into lease agreement with respondent and the entity which is now suing him under that lease (or its extension) is one and the same. Respondent does not argue that another LLC is fraudulently claiming it is a party to a contract it did not execute. Nor is there an argument that petitioner is purporting to be a successor in interest to the lessor, but is unable to establish a transfer of interest from the original lessor to itself. Here, it is merely the same corporate entity doing business using variations of its name: “265 East66th LLC,” “265 E 66th St. LLC” (emphasis added).

Courts frequently find that discrepancy in registered business name and the name appearing on a contract the corporation wishes to enforce is not fatal to the claim, absent fraud or misrepresentation (BLDG 44 Devs. LLC v. Pace Cos. NY, LLC, 213 AD3d 405 [1st Dept 2023]; Assos Construction Corp. v 1141 Realty LLC, 120 AD3d 1151, 1151-1152 (1st Dept 2014) (“a mere misnomer in the name of the corporate entity will not free it from liability under the contract”); Cohen v. OrthoNet NY IPA, Inc., 19 AD3d 261, 261 [1st Dept 2005]; Humble Oil & Ref. Co. v. Jaybert Esso Serv. Station, Inc., 30 AD2d 952, 952 [1st Dept 1968](“misnomer of the principal obligor in the contract does not affect the validity of the obligation”)).

Where respondent can show neither fraud, misrepresentation, or prejudice arising from the difference in spelling of petitioner's name on the petition and in the original lease, such distinction is de minimus and will not undermine petitioner's standing to bring this proceeding. Furthermore, to the extent the original lease may be a misspelling of petitioner company's actual name, as petitioner asserts, there exists no entity other than the petitioner itself who can enforce the underlying lease. Under such circumstance, fairness would require that respondent is not absolved of his bargained-for obligation by rendering the lease unenforceable by any existing entity. Based on the foregoing, this branch of respondent's motion is also denied.

Accordingly, it is ORDERED that

Respondent's motion (mot. seq. 02) seeking dismissal of this proceeding is denied; that branch of the motion seeking extension of respondent's time to serve an answer until ten days after notice of entry of the decision/order on this motion is granted;

Petitioner's cross-motion (mot. seq. 03) seeking to amend the petition to remove claims for rents not sought in the rent demand is granted, and petition is deemed so amended;

This proceeding is adjourned to September 3, 2025 at 9:30am in Part C, Room 823, for al purposes. This constitutes the decision and order of this court.

FOOTNOTES

1.   Respondent withdrew this branch of the motion upon petitioner producing a copy of a Lease Extension Agreement between respondent and 265 East 66th Street LLC, in effect at the time of commencement of this proceeding.

2.   The doctrine of idem sonas, while not dispositive, is also informative here. The doctrine holds that “strict accuracy in spelling names is not required in legal documents or proceedings. All that is required is that the name as spelled, although different from the correct spelling, conveys a sound practically identical with the sound of the correct name when pronounced” (Sporza v. German Sav. Bank, 119 A.D. 172, 104 N.Y.S. 260 [1st Dept 1907], affd 192 NY 8, 84 N.E. 406 [1908]).

Yekaterina Blinova, J.