Joan Ford Revocable Living Tr. v. Ford

2024 NY Slip Op 50568(U)

Joan Ford Revocable Living Trust, Petitioner, v. Pamela Cruz Ford, Respondent-Licensee

JOHN DOE #1 and JANE DOE #1, Respondents-Undertenants.

Index No. L&T 316511/23

Civil Court of the City of New York, Queens County

May 15, 2024

Unpublished Opinion

Counsel for Petitioner: Steven Matthew Fink, Esq.

Counsel for Respondent: Leon Isidore Behar, Esq.

LOGAN J. SCHIFF, J.

Recitation as required by CPLR § 2219(a), of the papers considered in the review of Respondent's motion to dismiss, and Petitioner's cross-motion to amend the pleadings:

Papers Numbered

Notice of Motion, Affirmation/Affidavit, & Exhibits 1 (NYSCEF 6-14)

Notice of Cross-Motion, Affirmation/Affidavits & Exhibits 2 (NYSCEF 20-28)

Answering Affidavits 3 (NYSCEF 29-34)

Replying Affidavits 4 (NYSCEF 35-37)

RELEVANT FACTUAL AND PROCEDURAL HISTORY

Petitioner commenced this holdover proceeding seeking possession of the subject cooperative apartment upon filing the Notice of Petition and Petition on September 21, 2023. The Petition is predicated upon a 10-day notice to quit, which alleges that the Respondent Pamela Cruz Ford (hereinafter "Respondent") entered into possession of the premises pursuant to an oral license agreement made between Respondents and Edward J. Ford, the trustee of the Joan Ford Revocable Living Trust, and that Mr. Ford thereafter revoked the license.

Respondent answered the Petition alleging, inter alia, that this court lacks personal jurisdiction over her; that Petitioner, a trust, lacks standing and capacity to commence this proceeding; that the Petition does not state Petitioner's interest in the premises; and, that Petitioner does not, in fact, hold any interest in the subject premises. Respondent now moves for dismissal of the Petition pursuant to CPLR 3212 ^[1] and CPLR 3211(a)(1), (3) (7), and (8). Petitioner opposes the motion and cross-moves pursuant to CPLR 3025(b) to amend the Petition.

DISCUSSION

For judicial economy, the court will first consider Petitioner's cross-motion to amend.

Petitioner's Cross-Motion to Amend

Petitioner seeks to amend two portions of the Petition. First, it seeks to include in the caption the name of Petitioner's trustee in lieu of the trust so to read: "Edward J. Ford as trustee of the Joan Ford Revocable Living Trust." Petitioner argues that amendment is warranted because Edward J. Ford is, in fact, the trustee of the Joan Ford Revocable Trust, and he has already appeared in the proceeding by personally verifying the Petition and signing the predicate ten-day notice to quit. Petitioner argues that the proposed amendment will not surprise or prejudice Respondent because Respondent knew or should have known that Edward J. Ford was the Petitioner's trustee based on the substance of the pleadings.

Second Petitioner seeks to amend paragraph "2" of the Petition (which refers to "Respondents" in occupancy) to specifically name Respondent Pamela Cruz Ford John Doe and Jane Doe as the Respondents. Petitioner again argues no prejudice will result from this amendment because Cruz Ford and the Does are defined as the "Respondents" in the caption and the predicate notice.

Respondent in her opposition neither denies that Edward J. Ford is the trustee of the Petitioner-trust, nor points to any potential prejudice to be caused by the proposed amendments. Instead, Respondent argues that leave to amend should not be granted because the very commencement of the proceeding by the trust and not the trustee renders the Petition fatally defective. In support, Respondent cites to J. Carey Smith 2019 Irrevocable Trust v. 11 West 12 Realty LLC, 2023 NY Slip Op 32432[U] [Sup Ct, NY County 2023]) and Salanitro Family Trust v. Yelena Gorina, 49 Misc.3d 153 [A] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015], which hold that, per EPTL 7.21(a), the legal estate of an express trust vests in the trustee and therefore only the trustee can sue or be sued. Therefore, Respondent argues, this case, commenced by a trust, must be dismissed. Respondent adds that even if this court permits the amendment of the Petition, the predicate notice remains defective and cannot be amended.

The decision to grant leave to amend the pleadings is within the court's discretion (see Ofman v Bluestone, 2024 NY Slip Op 02542 [2d Dept 2024]; Edenwald Contr. Co. v City of New York, 60 N.Y.2d 957 [1983]). "In the absence of prejudice or surprise to the opposing party, leave to amend a pleading should be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit" (Alsaidi v Alsaede, 2024 NY Slip Op 02291 [2d Dept 2024]; LCVAWCP-Doe v Collins, 218 A.D.3d 557 [2d Dept 2023]).

Based on the law and facts herein, the court finds that amendment of the caption to reflect the name of the trustee is warranted. While the court agrees that a trust, alone, lacks the capacity to commence a proceeding, it rejects Respondent's contention that the Petition cannot be amended to add the trustee, where, as here, the trustee has in effect appeared in the proceeding by signing the predicate notice and verifying the Petition on behalf of the trust. Under these circumstances, the captioning of the proceeding in the name of the trust constitutes a curable non-prejudicial defect in the filing of the papers (see CPLR 2001; Est. of Benitez v. City of New York, 193 A.D.3d 42, 50 [1st Dept 2021] [Reversing dismissal of action for lack of capacity and sua sponte amending caption as "[a]n action instituted in the name of the estate, and not its personal representative, is subject to correction by amendment"], citing CPLR 2001 and Rosenberg v Caban, 16 N.Y.2d 905 [1965]); see also People by James v. Trump, 217 A.D.3d 609, 612 [1st Dept 2023] [Where trust, not trustee, was sued but "the sole trustee is a defendant in this case and has been fully able to represent the Trust's interests, relief for this error should be limited to amending the caption"]).

The cases upon which Respondent relies in her motion support the availability of amendment here. In Salanitro, the Appellate Term reversed the trial court's order, which granted the petitioner-trust summary judgment despite the proceeding being commenced by the trust and not the trustee. Term then dismissed the petition, finding that the trust lacked capacity to commence the proceeding. However, in its analysis, the court highlighted that dismissal was warranted because the purported trustee "not only failed to sign the trust agreement, he also did not commence, or appear in, the instant proceeding," implying that the court might not have dismissed the petition had a duly authorized trustee properly sought substitution (id., 49 Misc.3d 153[A] at *2).

Similarly, in Ronald Henry Land Trust v Sasmor (44 Misc.3d 51 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]), the Appellate Term overturned the lower court's decision after trial, which denied a motion to dismiss and awarded the landlord a judgment of possession despite the proceeding being commenced by the trust. As in Salanitro, the court considered Petitioner's failure to join the trustee as a party in response to the motion to dismiss, noting that "no motion was ever made to join the trustees or to amend the caption to reflect that the trustees were the proper parties petitioner," again suggesting that had petitioner timely sought to amend the caption to add the trustee, the judgment in favor of petitioner would have been affirmed (id. at 52); cf. Hilda Townsend Revocable Tr. v. Johnson, 67 Misc.3d 1207 (A) [Civ Ct, Queens Co 2020] [dismissing petition commenced by trust for lack of capacity where name of trustee was absent in pleadings and predicate notice and "[n]o authorization by the trustees [was] indicated or alleged."]). In contrast to the petitioners in Salantrino and Sasmor, here the Petition and predicate notice both are signed by and identify the trustee, and Petitioner has timely cross-moved to amend in response to Respondent's motion to dismiss.

As Respondent herself maintains that the trustee of the instant trust is the proper party to commence this proceeding, fails to deny that Edward J. Ford is the proper trustee for Petitioner, and points to no prejudice to be suffered should the pleadings be amended, Petitioner's cross-motion is granted. The Petition is hereby amended to reflect "Edward J. Ford, as trustee of the Joan Ford Revocable Living Trust," as the Petitioner, and to amend paragraph "2" of the Petition to read: "Respondent PAMELA CRUZ FORD, JOHN DOE #1, and JANE DOE #1 (the 'Respondents') are the occupants of the Premises who came into lawful possession of same pursuant to an oral license agreement (the 'License')."

Respondent's Motion to Dismiss

The first branch of Respondent's motion seeks dismissal based on both the Petitioner-Trust's lack of standing, as well as its lack of capacity. As noted above, the substance of Respondent's argument in favor of dismissal is based on Petitioner's lack of capacity, not standing. "Capacity should not be confused with standing, which relates to whether a party has suffered an 'injury in fact' conferring a 'concrete interest in prosecuting the action,' whereas capacity concerns whether the legislature invested that party with authority to seek relief in court" (Matter of World Trade Ctr. Lower Manhattan Disaster Site Litig., 30 N.Y.3d 377, 383 [2017], quoting Soc'y of Plastics Indus., Inc. v Cnty. of Suffolk, 77 N.Y.2d 761 [1991]). Whereas a party's lack of standing generally may not be corrected by recaptioning in the name of the proper party where timely challenged (see Lehtonen v Dellaquila 67 Misc.3d 139 [A] [App Term, 2d Dept, 9th & 10th Jud Dists 2020]), a lack of capacity may be cured in the appropriate circumstances...