Opinion
2007-674 K C.
Decided December 18, 2007.
Appeal from an order of the Civil Court of the City of New York, Kings County (Bruce E. Scheckowitz, J.), dated December 28, 2006. The order denied tenant's motion to dismiss a holdover summary proceeding.
Order affirmed without costs.
PRESENT: PESCE, P.J., GOLIA and RIOS, JJ.
Landlords Dan Bailey, Felicity Loughrey, Andre Wiesmayr, and Deanne Cheuk sought, by notice of petition and petition dated October 6, 2006, to recover possession of the premises in question on the ground that they had elected not to renew tenant
Evelyn Suarez's lease, which expired on September 30, 2006. In the notice of nonrenewal, landlords Bailey and Loughrey stated that they intended, in good faith, to occupy the premises for their personal use as their primary residence ( see Rent Stabilization Code [9 NYCRR] § 2524.4 [a]).
Tenant moved to dismiss the petition, arguing that landlords lacked the authority to bring the proceeding. Tenant's argument was based on an assignment of leases and rents given by landlords as security for a mortgage on the property. The assignment provides, among other things, that the mortgagor "shall not alter, modify or change the terms of the Leases without the prior written consent of Mortgagee, or cancel or terminate the Leases." Tenant also argued that the notice of nonrenewal and holdover petition were fatally defective because they did not refer to the lease assignment. The court below denied the motion, holding that landlords did not relinquish their right to maintain a holdover proceeding, and that landlords had adequately stated their interest in the premises in the petition, pursuant to RPAPL 741 (1).
We affirm. Where the assignment of a lease is given as security for a mortgage, it is the assignor, not the assignee, who retains the right to maintain a summary proceeding against a tenant ( RPAPL 721 [1]; see Key Bank of N.Y. v Becker, 88 NY2d 899; Suderov v Ogle, 149 Misc 2d 906 [App Term, 2d 11th Jud Dists 1991]). Accordingly, landlords have standing to maintain the instant proceeding. Since the mortgage was intended to protect the mortgagee bank's interests, not any interest of tenant, tenant is not a third-party beneficiary of the mortgage and cannot claim rights thereunder ( see e.g. 243-249 Holding Co. v Infante, 4 AD3d 184). Finally, because the assignment does not affect landlords' standing to bring the instant proceeding and is not determinative of the parties' rights, the notice was not defective, and the petition adequately stated the interest of the landlords in the premises pursuant to RPAPL 741 (1) ( cf. Volunteers of Am.-Greater N.Y., Inc. v Almonte, 17 Misc 3d 57 [App Term, 2d 11th Jud Dists 2007]).
Pesce, P.J., Golia and Rios, JJ., concur.