Opinion
2014-06-13
RONALD HENRY LAND TRUST, Respondent, v. Jon SASMOR, Appellant, and Lisa Lin, Tenant.
Jon Sasmor, appellant pro se. Law Offices of Stuart I. Jacobs, Brooklyn (Shorab Ibrahim of counsel), for respondent.
Jon Sasmor, appellant pro se. Law Offices of Stuart I. Jacobs, Brooklyn (Shorab Ibrahim of counsel), for respondent.
Present: PESCE, P.J., SOLOMON and ELLIOT, JJ.
Appeal from a final judgment of the Civil Court of the City of New York, Kings County (Eleanora Ofshtein, J.), entered October 10, 2012. The final judgment, insofar as appealed from, after a nonjury trial, awarded possession to petitioner as against tenant Jon Sasmor, in a holdover summary proceeding.
ORDERED that the final judgment is reversed, without costs, and the matter is remitted to the Civil Court for the entry of a final judgment dismissing the petition.
This holdover summary proceeding was brought in the name of an express trust ( seeEPTL 7–2.1[a] ). Despite repeated objections by appellant Jon Sasmor (tenant) in the answer, in opposition to petitioner's motion for summary judgment, and by trial motion, that petitioner lacked the capacity to maintain this proceeding, as the statute vests the legal estate of an express trust in the trustees, no motion was ever made to join the trustees or to amend the caption to reflect that the trustees were the proper parties petitioner. In fact, the trustees did everything in their power to avoid disclosing their identities and appearing in this proceeding, including moving to quash the subpoenas that tenant had served upon them. In these circumstances, tenant's motion to dismiss the petition for lack of capacity should have been granted ( seeEPTL 7–2.1[a]; CPLR 1004; Matter of Straut, 126 N.Y. 201, 27 N.E. 259 [1891];Matter of Beiny, 23 Misc.3d 1112[A], 2009 N.Y. Slip Op. 50716[U], 2009 WL 1050727 [Sur.Ct., Bronx County 2009];Limouze v. M.M. & P. Maritime Advancement, Training, Educ. and Safety Pgm., 397 F.Supp. 784, 787–790 [D.C.Md.1975];but cf. Bedford Apts. Co. v. Coutts, N.Y.L.J., Nov. 30, 2000 at 29, col. 6 [App.Term, 1st Dept.] ).
We note that, while tenant Lisa Lin has not appealed, she is, in the circumstances presented, united in interest with the appealing tenant, and, thus, the final judgment must be reversed as to both tenants ( see e.g. Priegue v. Paulus, 43 Misc.3d 135[A], 2014 N.Y. Slip Op. 50662[U], 2014 WL 1622924 [App.Term, 9th & 10th Jud.Dists.2014] ).
Accordingly, the final judgment is reversed and the matter is remitted to the Civil Court for the entry of a final judgment dismissing the petition.