Summary
In Federal Nat. Mortg. Ass'n v. Simmons, 48 Misc 3d 24, 12 NYS3d 487 (App Term, 1st Dept 2015), the Court held that a licensee holdover proceeding cannot be maintained where a landlord/tenant relationship existed.
Summary of this case from Stanislaus v. StanislausOpinion
2015-04-29
FEDERAL NATIONAL MORTGAGE ASSOCIATION, Petitioner–Appellant, v. Kisshia SIMMONS, John Doe/Jane Doe, Respondents–Respondents.
Fein, Such & Crane, LLP, Syracuse (John A. Cirando of counsel), for appellant. Adam Leitman Bailey, P.C., New York City (Jeffrey R. Metz of counsel), for Kisshia Simmons, respondent.
Fein, Such & Crane, LLP, Syracuse (John A. Cirando of counsel), for appellant. Adam Leitman Bailey, P.C., New York City (Jeffrey R. Metz of counsel), for Kisshia Simmons, respondent.
PRESENT: LOWE, P.J., SHULMAN, HUNTER, JR., JJ.
PER CURIAM.
Final judgment (Cheryl J. Gonzales, J.), entered on or about June 7, 2013, affirmed, with $25 costs.
This holdover proceeding seeks to recover possession of a cooperative apartment occupied by respondent Kisshia Simmons. Respondent initially entered possession of the premises as a tenant pursuant to a 2005 proprietary lease agreement. Respondent subsequently defaulted on a loan secured by the shares and proprietary lease allocated to her apartment, and the shares and lease were then sold at a UCC article 9 nonjudicial sale. Petitioner is the purported assignee of the successful bidder at the sale. Petitioner then commenced this holdover proceeding, upon a ten-day notice to quit, alleging that respondent's license to occupy the premises has expired.
We sustain the dismissal after trial of the holdover petition. A licensee holdover proceeding pursuant to RPAPL 713(7) does not lie in the circumstances here present, since respondent “entered into possession of the apartment premises as a tenant pursuant to a proprietary lease agreement” (Retained Realty Inc. v. Zwicker, 46 Misc.3d 133[A], 2014 N.Y. Slip Op. 51852[U], 2014 WL 7391748 [App.Term, 1st Dept.2014]; City Enters., Ltd. v. Posemsky, 184 Misc.2d 287, 708 N.Y.S.2d 230 [2000] ). “If that lease has been terminated ... [respondent] is in possession as a holdover tenant. [S]he is not in occupancy pursuant to a license” ( Federal Home Loan Mortge. Asssn v. Perez, 40 Misc.3d 1, 3, 968 N.Y.S.2d 317 [2013] ). Indeed, so far as shown on this record, the nonparty cooperative neither terminated respondent's lease nor issued a new lease naming petitioner as the “tenant-shareholder.” To the extent that the cooperative refuses to do so, petitioner's remedy is in another forum at another time ( see generally LI Equity Network, LLC v. Village in the Woods Owners Corp., 79 A.D.3d 26, 910 N.Y.S.2d 97 [2010] ).
Petitioner also misplaces reliance upon RPAPL 713(1), which permits a purchaser to commence a summary proceeding to remove an occupant where the “property has been sold by virtue of an execution against him ... and a title under the sale has been perfected” (RPAPL 713[1] ). The notice to quit did not give adequate notice of such claim, even when we apply the liberal standard of “reasonableness” ( see Metropolitan Transp. Auth. v. Kura Riv. Mgt., 292 A.D.2d 230, 739 N.Y.S.2d 668 [2002]; Spinale v. 10 W. 66th St. Corp., 210 A.D.2d 85, 622 N.Y.S.2d 1 [1994] ). In any event, RPAPL 713(1) finds no application here because the property sold, viz., the shares and proprietary lease, were “personal property” ( see Matter of State Tax Commn. v. Shor, 43 N.Y.2d 151, 400 N.Y.S.2d 805, 371 N.E.2d 523 [1977]; Silverman v. Alcoa Plaza Assoc., 37 A.D.2d 166, 172, 323 N.Y.S.2d 39 [1971] ), not “real property” (RPAPL 701[1] ). “The sale of the shares and the lease is not a sale of the real property' ... [t]hus, RPAPL 713(1) ... provides no basis for the maintenance of this proceeding” ( Federal Home Loan Mtge. Assn. v. Perez, 40 Misc.3d at 3–4, 968 N.Y.S.2d 317).
Petitioner similarly misplaces reliance upon UCC article 9 as a basis to maintain this proceeding. “As the right to maintain summary proceedings did not exist at common law and is solely a creation of the statute, it applies only in those cases authorized by the statute” ( Dulberg v. Ebenhart, 68 A.D.2d 323, 328, 417 N.Y.S.2d 71 [1979] ). In the absence of any specific authority under RPAPL article 713 (proceeding where no landlord-tenant relationship exists), the proceeding may not be maintained.