24 WSN LLC v. Benjamin Duell, as Executor of the Estate Irene Duell; Lisa Reid; and Brian Reid, Respondent(s). (2026)

Papers Numbered

Order to show Cause/ Notice of Motion and Affidavits /Affirmations annexed 1

Answering Affidavits/ Affirmations 2

Reply Affidavits/ Affirmations 3

Memoranda of Law

Other — Papers in Motion Seq. No. 004 4-5

Petitioner moved for leave to reargue the Court's decision and order entered July 31, 2025 (NYSCEF Doc. No. 072, the "July Decision") denying petitioner's motion (Motion Seq. No. 002) to strike affirmative defenses and for use and occupancy pendente lite. By interim order entered April 9, 2026 (NYSCEF Doc. No. 103), the Court noted the issue of subject matter jurisdiction raised in the parties' papers in Motion Seq. No. 003 and invited further briefing on the issue. Respondent subsequently cross-moved to dismiss in what has been calendared as Motion Seq. 004. Following argument, the Court grants petitioner's motion to the extent of granting leave to reargue Motion Seq. No. 002 and also grants respondent's motion to dismiss this proceeding without prejudice for lack of subject matter jurisdiction, in the manner and for the reasons set forth in this decision.

Background

The Court assumes the parties' familiarity with this proceeding and the July Decision, but the somewhat unique path that brings the parties before the Court bears some repeating.

Then-Petitioner BNY Mellon, as trustee under the will of Catherine Hamersley Carpenter, commenced this holdover proceeding based upon the alleged expiration of an indenture concerning the premises at issue dating to 1875 and renewed periodically since. (Petition, NYSEF Doc. No. 001, ¶ 4; and NYSCEF Doc. No. 056). BNY named respondent Duell as well as nine anonymous co-respondents (one anonymous corporate respondent and six individual respondents) while acknowledging that "the Premises are located in a multiple dwelling," and detailed a purported multiple dwelling registration for the premises. (Petition, ¶ 10). As pled in the initial petition, BNY named respondent Duell and defined "Respondent" to be Duell in the petition. (Petition, ¶ 4). BNY also named respondent as well as " 'Respondents 'XYZ CORP.,' 'JOHN DOE 1,' 'JANE DOE 1,' 'JOHN DOE 2,' 'JANE DOE 2,' 'JOHN DOE 3,' 'JANE DOE 3,' 'JOHN DOE 4,' 'JANE DOE 4' are the undertenants (collectively, sometimes "Undertenants") of Respondent. The true names of Undertenants are unknown to Petitioner and are fictitious appellations intended to describe those persons in possession of the Premises." (Petition, ¶ 6). BNY further alleged that "Respondent and Undertenants hold over and continue in possession of the Premises without the permission of Petitioner after the expiration of," the indenture at issue. (Petition, ¶ 8). While BNY sought use and occupancy against "Respondent," (singular) BNY also sought attorney's fees from "Respondents," (plural), and "a warrant . . . to remove the Respondent and Undertenants from the possession of the Premises." (Petition, ¶¶ 12-13, and 15). BNY served each of the respondents on August 8, 2023, including the anonymous undertenant respondents by 'nail-and-mail' service at the premises at issue.¹ (Affs. of Service, collectively filed as NYSCEF Doc. No. 004).

A number of residential undertenants subsequently appeared in response to the petition, and the Court (Tsai, J.) ordered that respondents' answers were due on or before September 14, 2023. (NYSCEF Doc. No. 009). Lisa Reid and Brian Reid (subsequently identified by stipulation as Jane Doe 2 and John Doe 1 respectively) appeared by counsel on August 16, 2023 (NYSCEF Doc. No. 005) and BNY stipulated to discontinue claims against them, which the Court (Tsai, J.) so-ordered on October 26, 2023 (NYSCEF Doc No. 021). Jane Einbender (subsequently identified by stipulation as Jane Doe 3) appeared by counsel on August 21, 2023 (NYSCEF Doc. No. 006) and BNY stipulated to discontinue claims against them as well, which the Court (Tsai, J.) so-ordered on October 26, 2023 (NYSCEF Doc. No. 020). Brian Dube (initially self-identifying as John Doe 1 and subsequently identified by stipulation as John Doe 2) appeared by counsel on August 23, 2023 (NYSCEF Doc. No. 006) served an answer with cross-claim dated September 13, 2023 (NYSCEF Doc. No. 012) and BNY stipulated to discontinue claims against them in a stipulation also so-ordered by the Court (Tsai, J.) on October 26, 2023. (NYSCEF Doc. No. 019). Finally, Angelica Frantzen (initially self-identifying as Jane Doe 1 and subsequently identified by stipulation as Jane Doe 4) appeared by counsel on August 24, 2023 (NYSCEF Doc. No. 011), served an answer with cross-claim dated September 13, 2023 (NYSCEF Doc. No. 013) and BNY stipulated to discontinuing against them in a stipulation the Court (Tsai, J.) so-ordered on October 26, 2023 (NYSCEF Doc. No. 022).

Respondent answered the petition on September 14, 2023 (NYSCEF Doc. No. 009), and the Court (Tsai, J.) subsequently ordered discontinuance against all respondents except Duell by order dated November 30, 2023 based upon BNY's representation that it was dropping those claims, and granted a briefing scheduling order for "[p]etitioner's anticipated motion for summary judgment dismissing respondent's affirmative defenses and other relief."² (NYSCEF Doc. No. 023). Plaintiff's subsequent motion (NYSCEF Doc. No. 024, which appears to have been filed five months after the Court's written deadline) was calendared as Motion Seq. No. 001, which respondent opposed but did not cross-move to assert its defense. By that motion, BNY sought to amend the caption and petition to reflect the residential tenants' departure from the proceeding, striking respondent's subject matter jurisdiction defense, and granting use and occupancy. (Notice of Motion, at 2).

Respondent opposed the motion but did not cross-move. BNY did not expressly state whether it was attacking respondent's affirmative defense via motion to dismiss a defense pursuant to CPLR 3211(b) or by summary judgment pursuant to CPLR 3212, and the Court (Marcus, J.) subsequently granted petitioner leave to amend, denied petitioner's application to strike the defense as premature, denied petitioner's application for use and occupancy without prejudice, and directed respondent to answer petitioner's amended petition in a decision and order dated November 8, 2024. (NYSCEF Doc. No. 042, published sub nom. Mellon, N.A. v. Duell, 2024 NY Misc. LEXIS 86024). Respondent subsequently served an answer re-asserting the subject matter jurisdiction defense (and adding others) on December 12, 2024. (NYSCEF Doc. No. 043).

The parties subsequently stipulated on March 5, 2025 to a briefing schedule for petitioner to amend the pleadings again or seek other relief (NYSCEF Doc. No. 045), and then stipulated to petitioner simply serving a second amended petition while respondent reserved all rights regarding that amended pleading. (NYSCEF Doc. No. 046). Amongst changes, petitioner was substituted for BNY, and respondent served a verified answer. (NYSCEF Doc Nos. 048 and 051).

Petitioner's Underlying Motion to Strike Affirmative Defenses and for Use and Occupancy

After issue joined on the second amended petition, by motion calendared as Motion Seq. No. 002, petitioner subsequently moved to strike respondent's first (subject matter jurisdiction), second (standing), fifth (subject matter jurisdiction), sixth (service), seventh (failure to set forth registration number), eighth (waiver, laches, estopped, lease terms), and ninth (failure to state a cause of action) affirmative defenses, and again sought retrospective and prospective use and occupancy. Respondent, as it had before, opposed but did not cross-move.

The Court denied that motion in the July Decision, "given the high bar necessary to strike affirmative defenses and that the sharp dispute of the parties favors a prompt trial rather than further delay with the prospect of use and occupancy," and that "[a]ccordingly this proceeding is adjourned to July 21, 2025 for pre-trial conference at 9:30 a.m., at which the parties should be prepared to select a trial date." July Decision, at *1.

Petitioner's Motion to Reargue and Respondent's Cross-Motion to Dismiss

Upon the parties' stipulation consenting to briefing, petitioner sought reconsideration of the July Decision. (Aff. in Supp., NYSCEF Doc. No. 079, ¶ 3). "Specifically," petitioner "substantially reiterates the facts and circumstances contained" in Motion Seq. No, 002, and asserts that "the Court failed to rule on the merits and relief sought in Motion 2 and overlooked the fact that a decision on the relief sought and the merits of Motion 2 would narrow the issues for trial and would address threshold issues of this Court's jurisdiction before a jury trial takes place." (Aff. in Supp., ¶¶ 4 and 6). Petitioner further asserts that "[t]he Court further misapprehended the facts and the law in denying Motion [002] because Petitioner sufficiently demonstrated and proved that: (a) each of the referenced affirmative defenses of Respondent should be stricken as a matter of law," and "(b) Petitioner is entitled to use and occupancy because, inter alia, at least two adjournments were requested by Respondent and it is manifestly unjust and inequitable to allow Respondent to collect rent from subtenants while failing to compensate Petitioner for its use and occupancy of the Premises." (Aff. in Supp., ¶ 5) (emphasis added). Respondent opposed the motion, but did not cross-move and sought only that reargument be denied. (Mem. of Law in Opp., at 28).

Respondent having still not moved or cross-moved to dismiss this proceeding, while simultaneously asserting a subject matter (and thus non-waivable) jurisdiction issue that this proceeding was incorrectly filed in the Commercial Part rather than the Housing Part relates to subject matter jurisdiction, the Court found that it was "obliged to address the issue." Interim Order, at *1, citing, 274 E. 175 Realty LLC v. Rodriguez, 78 Misc 3d 1231(A), *1 (Civ. Ct., Bronx Co. 2023) (scheduling hearing to address subject matter jurisdiction issue); and In House Grp. Inc. v. Maleque, 2024 NY Misc. LEXIS 2329, *2-3 (Civ. Ct., New York Co. 2024) (discussing nonwaivable impact of subject matter jurisdiction questions). The Court also found that providing "an efficient vehicle to resolve the jurisdictional issue in this proceeding (rather than just leaving this threshold issue to be decided in a potential jury trial)" was necessary "to prevent further delay," given the prominence of the issue in the papers. Id., citing, 274 E. 175 Realty LLC , supra.; and N.F. v. J.J., 2025 NY Misc. LEXIS 7535, *6-7 (Fam. Ct., New York Co. 2025) (noting that issues should be addressed promptly).

Respondent subsequently cross-moved to dismiss, which petitioner opposed and has been calendared as Motion Seq. No. 004.

Discussion

The Court is and has been mindful that this landlord-tenant proceeding is, by statute, a summary proceeding, where the Court must be "sensitive to the need for speed and economy," in procedural practice. Kenwood Ests. LLC v. Schult, NYLJ, Aug. 12, 2026 at p.17, col.2, 2026 NYLJ LEXIS 1162, *5 (Civ. Ct., New York Co. Jun. 6, 2026). See also, Vinson v. Hamilton, 854 P.2d 733, 737 (Alaska 1993) (collecting authorities and discussing history and development of summary landlord-tenant proceedings throughout the Nation). Courts have long noted that "the purpose of the statute permitting summary proceedings was to obtain speed, promptness and certainty of decisions in such cases and that motions . . . having the necessary effect of delaying the proceedings, were hostile to the very character and object of the remedy which the Legislature had provided." Goodman v. Schached, 144 Misc. 905, 916 (Nassau Co. Ct. 1932). In that vein, "the making of motions is generally discouraged in favor of a prompt trial." City of New York v. Schmitt, 11 Misc 3d 145(A), *9 (App. Term, 2d Dept. 2006). That this three-year-old summary proceeding has not always followed that path does not change the statutory expectations now, and the motions before the Court have been considered in that light.

While the July Decision Was on the Merits, the First Department Favors Reconsideration

As a threshold issue, petitioner's stated brevity concerns about the Court's approximately 60-word July Decision aside, that decision was on the merits of petitioner's motion. The fact that the Court determined the motion concisely does not diminish the import and effect of the Court's holding, and the Appellate Divisions have routinely and repeatedly rejected challenges asserting that courts have "failed to adequately explain" their decisions, noting that while "a court owes litigants some explanation of its determinations and clarity of its directives," a court "has broad discretion in determining the level of detail that it provides and discerning which case calls for a heightened level of detail is part of the subjective art of judging." Draina v. Town of Ballston, 2026 NY Slip Op 03863, *4 (3d Dept. Jun. 18, 2026), quoting, Charalabidis v. Elnagar, 188 AD3d 44, 49 (2d Dept. 2020), and citing, Ruderman v. City of New York, 142 AD3d 863, 863 (1st Dept. 2016). Here, the Court did that, denying petitioner's motion and noting the "high bar necessary to strike affirmative defenses," and setting the matter on a path for a "prompt trial," following Schmitt. July Decision, at *1. Cf., Amelius v. Grand Imperial LLC, 57 Misc 3d 835, 843 (Sup. Ct., New York Co. 2017), quoting, Granite State Ins. Co. v. Transatlantic Reins. Co., 132 AD3d 479. 481 (1st Dept. 2015) (noting the "heavy burden of showing that the defense is without merit as a matter of law" necessary to strike or dismiss an affirmative defense pursuant to CPLR 3211). Petitioner's dilemma is thus not that the Court ignored them, but that the Court disagreed with them.

That said, the Court has also noted previously that it "is not infallible, so there is always the potential that a litigant's theory has been underestimated and that a more expanded record and a more elaborate briefing process would provide them with some ability to prevail despite having not prevailed earlier." Seventh Regiment Armory Conservancy, Inc v. Knickerbocker Greys, 2026 NY Slip Op 51060(U), *4 (Civ. Ct., New York Co. Jul. 10, 2026), quoting, Hungerford & Terry, Inc. v. City of Lawrenceburg, 2006 U.S. Dist. LEXIS 9247, *14 (S.D. Ind. 2006). See also, Brown v. Allen, 344 U.S. 443, 540 (1953) (Jackson, J., concurring) (memorably noting that "[w]e are not final because we are infallible, but we are infallible because we are final"). In contemplating reconsideration, the Court is "in any event . . . also fully empowered to vacate or modify its own order, as the court always retains the inherent power to set aside, correct or modify its own orders." Barry v. Association des Senegalais d'Amerique ASA, 78 Misc 3d 1206(A), *1-2 (Civ. Ct., Bronx Co. 2023) (collecting cases and discussing reconsideration standard in the First Department). See also, Department Stores Natl. Bank v. Bailey, 85 Misc 3d 139(A), *1 (App. Term, 1st Dept. 2025) (reversing denial and finding that "courts have discretion to relax this requirement and grant such a motion in the interest of justice . . . and to achieve substantial fairness").

Also, "[w]hile the subjective import of one case or another does not itself lead to granting reconsideration, the Court is also mindful of the importance of courts issuing written opinions on matters of interest, and to do so in a way that maintains the integrity of the corpus of the common law so that the community understands it and so that it may be legitimately integrated into the tradition." Seventh Regiment Armory Conservancy, at *6 (quotations and citations omitted). On that basis, and within the discretion noted in Department Stores Natl. Bank, petitioner has established a basis to grant leave to reargue the July Decision. See also, Draina, supra.

Plaintiff's Initial Commencement Against Residential Co-Respondents Deprives the Court of Subject Matter Jurisdiction

"The procedural predicates necessary to commence a summary landlord-tenant proceeding are specific and exacting." 2118 Group LLC v. Lior Group LLC, 2026 NY Misc. LEXIS 10603, *1 (Civ. Ct., New York Co. Apr. 9, 2026). That is the cost-benefit of a summary proceeding — accepting the cost of some more structure for the benefit of speed — which petitioner chose to file. Cf., Vinson, supra. If a summary proceeding is incorrectly filed as a commercial holdover in the Commercial Landlord-Tenant Part rather than as a residential holdover in the Housing Part, the remedy is dismissal. Lam v. BDDW Studio, LLC, 87 Misc 3d 129(A), *1 (App. Term, 1st Dept. 2025). In this regard, unlike perhaps other types of civil actions in other parts of the Civil Court, the Court, for instance, is not empowered to correct a misfiled summary landlord-tenant proceeding by transferring it to the correct part. Lam, supra. To the extent those strictures present procedural hurdles here, the parties' remedy lies elsewhere. See, Hwang v. Pan, 85 Misc 3d 774, 775 n.1 (Civ. Ct., New York Co. 2024), citing, Scavetta v. Wechsler, 149 AD3d 202), and Matter of Luongo v. Records Access Officer, Civilian Complaint Rev. Bd., 150 AD3d 13 (1st Dept. 2017) (potential practical difficulties posed by appellate precedent do not absolve parties and courts from following them). Here, the Court must, as the First Department noted in Scavetta and Luongo, follow the law as it exists, not as the parties may wish it to be.

The Court has little doubt from the record presented that respondent is, for the purposes of this litigation at the very least, a commercial tenant. See, 2118 Group, at *2. "Accordingly, under these facts, had the action been commenced solely against [respondent] seeking possession of the entirety of the building from [respondent], without seeking possession from, and the eviction of, any residential tenants, the Commercial Part may have been the appropriate forum." Id. But, as the Court has noted in 2118 Group, "that does not end the inquiry." Id. In that inquiry, petitioner bears the burden in establishing jurisdiction. See, e.g., Hanson v. Marshall, 2023 NY Misc. LEXIS 23616, *1 (Civ. Ct., Bronx Co. 2023) (claimant bears burden in establishing subject matter jurisdiction). Here, petitioner's pleadings do not establish jurisdiction in the Commercial Part.

Moreover, because the question of whether to commence in a commercial or residential part sounds in subject matter jurisdiction, "a defect in subject matter jurisdiction is not curable, even by consent of the parties," compelling dismissal. Cerniglia v. Ambach, 145 AD2d 893, 894 (3d Dept. 1988), citing, Robinson v. Oceanic Steam Navigation Co., 112 NY 315, 324 (1899). Specifically as to the Civil Court's jurisdiction, the neighboring Appellate Term has found that "[j]urisdiction of the subject matter cannot be conferred on the court by any consent or stipulation . . . nor can a court's lack of subject matter jurisdiction be cured by waiver, consent, estoppel, laches or anything else." Priel v. Linarello, 7 Misc 3d 64, 67 (App. Term, 2d Dept. 2005) (emphasis added). That means a "[c]ourt's lack of subject matter jurisdiction cannot be cured by amendment of the complaint because jurisdiction must exist at the time the original complaint was filed." Cull v. United States, 2025 U.S. Dist. LEXIS 57020, *7-8 (N.D.NY 2025) (quotations and citations omitted). See also, Penades v. Port Auth. of New York, 85 Misc 3d. 1211(A), *3 (Civ. Ct., New York Co. 2024 (premature filing deprived court of jurisdiction and could not be cured by staying proceeding).³ If mistakenly filing in the Commercial Part is not curable by transfer (as the Appellate Term reaffirmed in Lam) then it follows, similarly, that the defect here is inherently fatal ab initio as stated in Cull.

Because this proceeding was fatally flawed ab initio, subsequent decisions and orders by various judges of the Court cannot serve to resuscitate what has been dead from its beginning. Moreover, none of those decisions addressed the subject matter jurisdiction question squarely to the extent it was presented at all. Indeed, the closest any prior decision comes to addressing the question is the Court's (Marcus, J.) decision determining Motion Seq. No. 001, in which the Court permitted amendment as "not patently lacking in merit," and denied petitioner's motion to strike the defense not on its merits, but because the Court found it was "premature." Mellon, N.A., at *2-5. By its own terms, the Court (Marcus, J.) preserved the issue for later proceedings and, to the extent it was premature then, it is not now.

Although the Court recognizes that dismissal of this three-year-old proceeding is a harsh remedy, all is not lost. "Unlike most questions of subject matter jurisdiction, [petitioner's] jurisdictional dilemma is not permanent and can be remedied." Penades, at *3. As in Penades and Doe, the solution is simply refiling in compliance with statute. Now that petitioner appears to have clarified that it seeks relief only against its commercial tenant — respondent — it may re-commence a proceeding against respondent in the Commercial Part, and its claims against respondent may proceed in the ordinary course.⁴

The Court's Lack of Subject Matter Jurisdiction Renders Respondent's Other Affirmative Defenses Moot, But the Court Would Otherwise Adhere to the Conclusions of the July Decision in Any Event

Because the initial petition's fatal inclusion of residential tenant co-respondents, the Court lacks jurisdiction to reach the remaining questions of respondent's other affirmative defenses, and they are now moot. Everything that has occurred absent jurisdiction is a nullity. ADA Dining Corp. v. 208 East 58th Street, LLC, 2008 NY Slip Op 31308(U), *12 (Sup. Ct., New York Co. 2008). Assuming arguendo that the Court had jurisdiction to reach them however, the Court would adhere to its holding in the July Decision given the "heavy burden" noted in Granite State Ins. Co, and Amelius. Amelius, supra. The parties are reminded of the generous pleadings standards in New York and the Court's limited role in considering a motion to dismiss or strike pursuant to CPLR 3211 compared to summary judgment pursuant to CPLR 3212, to say nothing of the standard at the prompt trial on the merits that the Court had initially directed over a year ago.⁵ In considering a motion on the pleadings — the most favorable standard to the non-moving party — and especially in the context of disfavoring extensive pre-trial motion practice in favor of a prompt trial of a summary proceeding as indicated by appellate courts, petitioner has not met their burden.

While the Court dismisses this proceeding today on the basis of what is essentially respondent's first and fifth affirmative defenses, petitioner would have had the burden of establishing its contractual relationship to respondent and its terms at trial, effectively sounding in respondent's second and eighth affirmative defenses. Whether petitioner listed the correct registration number would be a matter to establish at trial as well, thus permitting respondent's seventh affirmative defense to stand at least for now. As for respondent's ninth affirmative defense, courts have repeatedly held that "the pleaded defense of failure to state a cause of action is harmless surplusage and a motion to strike it should be denied as unnecessary." Amelius, supra., quoting, Towne v. Kingsley, 121 AD3d 1381, 1383 (3d Dept. 2014).

The Court's Lack of Subject Matter Jurisdiction Similarly Renders Petitioner's Application for Use and Occupancy Moot, But the Court Would Otherwise Adhere to the Conclusions of the July Decision in Any Event

Much as respondent's other affirmative defenses have been mooted by the lack of subject matter jurisdiction here, the Court similarly finds upon reargument that petitioner's application for retrospective and prospective use and occupancy pendente lite is moot. However, even if petitioner's application was not moot, the Court would adhere to its conclusion in the July Decision in denying use and occupancy at this time in any event. To the extent that petitioner's application for past use and occupancy was not already determined by the Court (Marcus, J.) in Motion Seq. No. 001 — of which petitioner did not seek reconsideration or an appeal — the Court would deny that application for the reasons set forth in that prior unchallenged decision. Mellon, at *8. As to prospective use and occupancy, the Court would similarly adopt the reasons set forth in Mellon denying prospective use and occupancy as both premature and better addressed by a prompt trial as contemplated by Schmitt. See, Mellon, at *5-8.

Conclusion

Accordingly, it is

ORDERED that petitioner's motion for leave to reargue the July Decision calendared as Motion Seq. No. 003 is granted in part to the extent of granting petitioner leave to reargue Motion Seq. No. 002; and it is further

ORDERED that respondent's cross-motion to dismiss calendared as Motion Seq. No. 004 is granted in part to the extent of finding that this proceeding was improperly commenced as a residential proceeding in the Commercial Part; and it is further

ORDERED that this proceeding is dismissed without prejudice for lack of subject matter jurisdiction; and it is further

ORDERED that the remaining branches of petitioner's motion and respondent's cross-motion are denied as moot.

This constitutes the Decision and Order of the Court.

Date: August 19, 2026

Hon. Jeffrey S. Zellan, A.J.S.C.

FOOTNOTES

1.   For purposes of this decision, the Court assumes without deciding that service was complete and valid. That said, the Court also notes that the publicly-available electronic database of the United States Postal Service at www.usps.com, of which the Court may take notice, does not list delivery information for any of the certified mailings detailed in the proof of service. See, City of New York v. Doe, 82 Misc 3d 438 (Civ. Ct., Bronx Co. 2023) (taking notice of publicly-available records of the Postal Service in considering service). In any event though, as discussed here, a number of respondents appeared in response to that service.

2.   In BNY's subsequent motion, they asserted that "[t]o the extent that there are any respondent-undertenants who have not appeared in this proceeding, Petitioner is not seeking possession from, or the removal of, such entities or individuals from the Premises," and that "[t]herefore, it is proper to remove the Undertenants from the caption in this proceeding." (Aff. in Supp., NYSCEF Doc. No. 025, ¶ 7).

3.   A body of case law and practice in the Small Claims Part has developed that takes a different view in the context of permitting amendments to conform to the monetary limits of subject matter jurisdiction in the Small Claims Part, where "it seems odd as a practical matter to hold that when the court would have subject-matter jurisdiction but for a simple-to-cure flaw in the pleadings, the court should treat that flaw as incurable." Gerald Lebovits and Mark Shawhan, Small Claims Manual (7th ed. 2025), at 25 (urging flexibility in small claims). While the Court has applied that standard in small claims, that standard has not been uniformly adopted by courts, and the Legislature's policy considerations and intent in crafting the simplified and relaxed processes of the Small Claims Part markedly differ from their considerations and intent in crafting summary proceedings for landlord-tenant matters. Id. (citing contrasting opinions and noting that "view has some intuitive appeal").

4.   In the event petitioner ultimately succeeds in evicting respondent and obtaining possession of the premises at issue, petitioner would presumably assume the role of landlord to the residential undertenants and be bound by any residential leases then in effect, much as a purchaser of a residential building assumes the existing landlord's obligations under the tenants' leases.

5.   Petitioner did not style its motions as seeking summary judgment, and the Court declines to deem their request for relief as seeking a summary judgment standard rather than the traditional dismissal of an affirmative defense pursuant to CPLR 3211(b). Moreover, the consideration of simply proceeding to a prompt trial in lieu of summary judgment litigation would remain a consideration favoring the same result. See, Schmitt, supra.; and I.O. v. New York City Dept. of Ed., Dkt. No. 20-cv-5067, slip op. at 1 (S.D.NY Jun. 21, 2021 (denying leave to move for summary judgment in favor of prompt trial).

Jeffrey S. Zellan, J.