Opinion
No. LT2456–10.
2010-09-24
488 ARCADE, L.L.C. and Robert Bichoupan, P.C., Petitioners, v. 90 NORTH PEARL INC., Chad Hotaling and Derek Coleman, Respondents.
Timothy J. Berry, Esq., Albany, NY, Attorney for Petitioners. Brian W. Matula, Esq., Cooper Erving & Savage LLP, Albany, NY, Attorneys for Respondents.
Timothy J. Berry, Esq., Albany, NY, Attorney for Petitioners. Brian W. Matula, Esq., Cooper Erving & Savage LLP, Albany, NY, Attorneys for Respondents.
HELENA HEATH–ROLAND, J.
This summary proceeding was commenced by petitioners on July 28, 2010 seeking an immediate warrant of eviction and judgment for past due rent for premises located at 488 Broadway, Suite 105, in Albany, NY. Petitioners also raised claims that respondents owed petitioners $3,000.00 for an unjust enrichment cause of action and $1, 197.79 reflecting the balance due to petitioner Robert Bichoupan, P.C. pursuant to the terms of a promissory note. Respondents filed a motion to dismiss the petition, and on September 7, 2010 petitioners filed opposition papers to the motion. A reply affirmation by respondents was filed on September 14, 2010. The matter is now fully submitted for the Court's decision.
Respondents first argue that petitioner Robert Bichoupan, P.C. is not entitled to bring a summary proceeding for the claims asserted. New York Real Property Actions and Proceedings Law (“RPAPL”) § 721 sets forth who may bring a summary proceeding. It is undisputed that Robert Bichoupan, P.C. is not the landlord of the subject premises but rather a “managing member” of petitioner 488 Arcade, L.L.C., the entity which is the landlord. Nor does Robert Bichoupan, P.C. fit into any of the other criteria set forth in RPAPL § 721 to commence this summary proceeding. Rather, Robert Bichoupan, P.C. and respondents executed a promissory note in May 2009. Pursuant to that note, it appears that respondents borrowed $4,600.00 from Robert Bichoupan, P.C. in order to pay the first four months rent on the subject premises. The existence of the promissory note does not give Robert Bichoupan, P.C. standing to sue as a proper party to this proceeding, nor can a cause of action for payment on the note be maintained within this proceeding as a summary proceeding is strictly limited to recovery of possession of premises and rental arrears. Accordingly, the Court finds that Robert Bichoupan, P.C. is not a proper party to this proceeding and the cause of action with respect to the promissory note is hereby dismissed.
As a related issue, the individually named respondents are not proper parties to this proceeding given that the subject lease, and thus the landlord-tenant relationship, is solely between 488 Arcade, L.L.C. and 90 North Pearl Inc. Accordingly, this proceeding is dismissed as against the individually named respondents, Chad Hotaling and Derek Coleman.
With respect to petitioner 488 Arcade, L.L.C.'s claim for $3,000.00 for unjust enrichment based upon an allegation that respondents illegally “tapped into” an electrical line without the permission of the landlord, this cause of action also cannot be maintained within a summary proceeding and is hereby dismissed.
Finally, respondent 90 North Pearl Inc. (hereinafter “respondent” or “tenant”) moves to dismiss this proceeding based upon its assertion that it had already vacated the subject premises at the time this petition was filed. It is well settled law that “it is essential to the jurisdiction of the court to entertain a summary proceeding and to make a final judgment therein that the tenant should be in possession.” Warrin v. Haverty, 149 AD 564, 567, 133 NYS 959 (1st Dept 1912). “The party sought to be removed must be either in actual or constructive possession, or at least must claim the right to possession at the commencement of the proceeding.” Fishel v. Baronelli, Ltd., 119 Misc.2d 625, 626, 463 N.Y.S.2d 1009 (N.Y. City Civ Ct 1983). The Court has no jurisdiction to hear summary proceedings unless the tenant is either in possession or exerting control over the property at the time the proceeding is commenced. First Nat. City Bank v. Wall St. Leasing Corp., 80 Misc.2d 707, 363 N.Y.S.2d 699 (N.Y. City Civ Ct 1974); Cammarota v. Bella Vista Development Corp., 88 A.D.2d 703, 451 N.Y.S.2d 309 (3d Dept 1982); Fishel v. Baronelli, Ltd., 119 Misc.2d 625, 463 N.Y.S.2d 1009 (N.Y. City Civ Ct 1983). Here, it is uncontroverted that respondent's attorney contacted petitioners' attorney the day before this proceeding was commenced (July 27, 2010). At that time Mr. Matula advised and informed Mr. Berry that respondent was no longer in possession of the subject premises and that respondent wanted to turn the keys to the premises over to the landlord/petitioners. Mr. Matula asked Mr. Berry whether respondent should deliver the keys to him or to someone else, and Mr. Berry indicated that he would speak with his clients about what they wanted. The following day, Mr. Berry commenced this proceeding.
Petitioners argue that since respondent did not actually deliver the keys to Mr. Berry until after this proceeding was commenced, and since respondent left some of its property in the leased premises after vacating, petitioners did not have physical possession of the subject premises at the time of the commencement of this proceeding.
When a tenant returns the keys after relinquishing possession of the premises, this as a general rule constitutes an act evidencing an intent to offer a surrender. 2 Rasch, New York Landlord and Tenant, Fourth Ed, § 26:16. “However, if the keys are not surrendered this fact alone is not conclusive that the premises have not been surrendered.” First Nat. City Bank v. Wall St. Leasing Corp., 80 Misc.2d 707, 709, 363 N.Y.S.2d 699 (N.Y. City Civ Ct 1974). Here, respondent relinquished possession of the premises and tendered the keys to Mr. Berry on July 27, 2010, prior to commencement of this proceeding. While Mr. Berry did not accept respondent's tender until a few days later, the issue is not whether petitioners had possession of the premises, but whether respondent was in possession of the premises at the time this proceeding was commenced. No evidence has been submitted which shows that petitioners could not, at all times subsequent to July 27, 2010, have taken complete possession of the premises without need of this proceeding. First Nat. City Bank v. Wall St. Leasing Corp., 80 Misc.2d 707, 709, 363 N.Y.S.2d 699 (N.Y. City Civ Ct 1974); Matter of Withe v. White, 150 Misc. 405, 268 NYS 229 (Tonawanda City Court 1933).
This Court finds that prior to the commencement of this proceeding respondent had relinquished possession of the premises to petitioners and no longer exerted any control over the property. Accordingly, since this Court does not have the jurisdiction to hear petitioners' cause of action as a summary proceeding, this proceeding is dismissed.
The remainder of respondent's motion is denied as moot.
So ordered.