Opinion
2007-447 S C.
Decided March 7, 2008.
Appeal from an order of the District Court of Suffolk County, Fifth District (James P. Flanagan, J.), dated January 24, 2007. The order granted a motion by respondents to dismiss the proceeding.
PRESENT: McCABE, J.P., TANENBAUM and MOLIA, JJ.
Order affirmed without costs.
In this commercial nonpayment proceeding, respondents moved to dismiss, asserting that the proceeding did not lie because they were not in possession of the property at the time the proceeding was commenced in June 2006. They claimed that the lease, executed on May 17, 2005, gave them six months within which to obtain municipal approval for the sports facility that they wished to construct on the property, that they were unable to obtain the approval, and that they had so notified landlord and had terminated the lease within the six months, as was their right there under. They further claimed that possession of the property had never been delivered to them and that landlord had continued to use the property for the storage of vehicles and equipment. In support of their motion, respondents submitted two sets of photographs, one set taken in June 2005 and the other in June 2006, shortly after the proceeding was commenced, showing that there was equipment and debris on the property, which, respondents claimed, was not theirs, and a chain-link fence around the property. Finally, respondents Jonathan Lord and Paul Corace asserted that they are not proper parties to this proceeding because they were only guarantors of the lease.
In opposition, landlord asserted that respondents should be held to be in possession because they had executed the lease and had exercised dominion and control over the property. In support of the assertion that respondents had exercised dominion over the property, landlord's president claimed that, in March 2006, respondent Corace had asked him to remove the equipment and debris from the property and that he had promptly complied. He also claimed that respondents' environmental surveyor had traversed the property. He denied that respondents had ever notified him that they were terminating the lease, and that there was a chain-link fence around the property.
In our view, the District Court correctly ruled that respondents Lord and Corace were not proper parties since a guarantor is not a proper party to a summary proceeding ( see Realty Equity Holdings 3820 L.L.C. v DeVito Furniture Corp., 1 Misc 3d 129[A], 2003 NY Slip Op 51577[U] [App Term, 2d 11th Jud Dists 2003]). The court also correctly determined that respondents were not in possession of the property at the time the proceeding was commenced. The photographic proof submitted by respondents corroborated their claim that there were upon the property, at the time the proceeding was commenced, several dump trucks and other trucks, a construction shed, a tractor and several dumpsters, and landlord failed to dispute respondents' claim that the equipment and materials belonged to landlord or to someone to whom landlord had rented the property, and not to respondents. Since respondents were not in possession of the property at the time the proceeding was commenced, this summary proceeding was not maintainable ( see Matter of Cammarota v Bella Vista Development Corp., 88 AD2d 703; Warrin v Haverty, 149 App Div 564). We pass on no other issue.
McCabe, J.P., Tanenbaum and Molia, JJ., concur.