Opinion
11030471.
Decided April 5, 2011.
Mark S. Aquino, Christopher J. Mikienis of Counsel, Attorney for Petitioner Lisa Arroyo.
Mary DiPasquale, Pro se.
Lisa Arroyo (Arroyo) filed a petition seeking summary relief to recover 6543 Emily Lane Town of Lockport New York property and a $9,000.00 money judgment for back rent. Mary DiPasquale (DiPasquale) filed an answer requesting on adjournment, admitting she owed three months rent under a lease to purchase opportunity, but that part of the rent payments went towards her down payment on the purchase of the property. At the hearing DiPasquale defaulted in appearance because she was working and did not have enough notice to take time off from work. The Court requested
a copy of the lease from Arroyo. The lease was a land contract commencing November 5, 2010 and self terminating April 30, 2011 when the anticipated transfer of title was to occur. Default terms, as well as liquidated damages, were spelled out in paragraph 14 of the document including but not limited to non payment by DiPasquale, failure of DiPasquale to obtain a written mortgage commitment by March 31, 2011 and failure to close on the real property or before April 30, 2011.
Typically, execution of a contract of sale between a landlord and tenant serves to merge the landlord/tenant relationship into a vendor/vendee relationship, effectively terminating the former. However, the parties may avoid a merger through an express declaration in the agreement to this effect. Lind v. Lind, 203 AD2d 696, 610 N.Y.S. 2d 347 (3d Dept. 1994).
While paragraph 14 H of the land contract does permit seller to commence an action pursuant to Article 7 of the RAPL (sic) to recover possession of the subject premises, that alone is not enough to show an express agreement to continue a landlord/tenant relationship. Once the land contract was signed a vendor/vendee relationship was established.
To recover under a land contract by use of Article 7 of the Real Property Actions and Proceedings Law (RPAPL) is inappropriate and this court does not have jurisdiction [See Bean v. Walker 95 AD2d 70 (4th Dept — 1983); Hornsby v Christopherson 160 Misc 2d 78 (1994)]. DiPasqualeby executing the land contract has acquired equitable title to the property and Arroyo merely holds legal title in trust for her subject to Arroyo's equitable lien for the payment of the purchase price in accordance with the terms of the land contract. Therefore, Arroyo can not enforce her rights by the simple expedient of an eviction action but is required to proceed to foreclose DiPasquale's equitable title or bring an action at law for the purchase price. RPAPL Article 7 relief in this court is unavailable to Arroyo because she has not established a landlord/tenant relationship with DiPpasquale.
As a summary proceeding commenced pursuant to RPAPL Article 7 is a purely statutory creature, "there must be strict compliance with the statutory requirements to give the court jurisdiction." Riverside Syndicate, Inc. v. Saltzman, et al., 49 AD3d 402 (1st Dep't 2008); accord King v. CEL, Inc., 252 AD2d 773,774 (3d Dep't 1998); Calvi v. Knutson, 195 AD2d 828, 830 (3d Dep't 1993); MSG Pomp Corporation v. Baez, 185 AD2d 798, 799-800 (1st Dep't 1992); Perrotta v. Western Regional Off-Track Betting Corp., 98 AD2d 1, 2 (4th Dep't 1983); Shields, et al., v. Benderson Development Company, Inc., et al., 76 Misc 2d 322, 323 (Monroe Co. Ct. 1973); BMG Enterprise, Inc., et al., v. Bagdon, 17 Misc 3d 795,796 (Auburn City Ct 2007); Zenila Realty Corp v. Masterandrea, 123 Misc 2d 1, 6 (Civil Ct. NYC, N.Y.Co.1984). Here, no landlord/tenant relationship between the parties was established by Arroyo. Accordingly, her petition for a summary proceeding must be dismissed.