Opinion
Index No. L&T 311142/23
03-13-2024
Carlos Escobar, MEMBER OF 60-39 MASPETH LLC, SUCCESSOR-IN-INTEREST TO CARLOS ESCOBAR, INDIVIDUALLY, Petitioner, v. Cindy San Nicolas, OWEN SAN NICOLAS, MATTHEW SAN NICOLAS, DHAN BICOS, JOHN DOE, and JANE DOE, Respondents.
Noah R. Drucker, Esq., Drucker & Mattia, PLLC Attorneys for petitioner Hee Hwan (Dan) Shin, Queens Legal Services Attorneys for respondent Cindy San Nicolas
Unpublished Opinion
Noah R. Drucker, Esq., Drucker & Mattia, PLLC Attorneys for petitioner
Hee Hwan (Dan) Shin, Queens Legal Services Attorneys for respondent Cindy San Nicolas
Clinton J. Guthrie, J.
Recitation, as required by CPLR § 2219(a), of the papers considered in the review of respondent's motion to dismiss pursuant to CPLR § 3211(a)(7), RPAPL § 721, and Limited Liability Company Law § 610, or, in the alternative, to serve and file an amended answer pursuant to CPLR § 3025(b):
Papers Numbered
Notice of Motion & Affirmation/Exhibits Annexed 1 (NYSCEF # 7-10)
Affirmations in Opposition & Exhibits Annexed 2 (NYSCEF # 11-16)
Affirmation in Reply 3 (NYSCEF # 17)
Upon the foregoing cited papers, the decision and order on respondent's motion is as follows:
PROCEDURAL HISTORY
This holdover proceeding predicated on a 90-day notice of termination was filed in June 2023. Respondent Cindy San Nicolas (hereinafter "respondent"), represented by counsel, filed the instant pre-answer motion to dismiss in October 2023. Following an adjournment for briefing and submission of opposition and reply papers, the court heard argument on the motion on March 12, 2024. Decision was reserved upon the conclusion of the argument.
DISCUSSION
Respondent seeks dismissal on the basis that petitioner lacks standing to proceed herein, insofar as the case is brought by petitioner as member for the LLC that owns the subject premises. Respondent cites to both RPAPL § 721, which enumerates the persons and entities that may maintain summary eviction proceedings under Article 7 of the RPAPL, and Limited Liability Company (LLC) Law § 610, which provides that "[a] member of a limited liability company is not a proper party to proceedings by or against a limited liability company, except where the object is to enforce a member's right against or liability to the limited liability company." Petitioner opposes respondent's motion to dismiss in all respects.
Both parties attach a deed dated March 24, 2022 to their respective submissions. The deed conveys the subject property, 60-39 Maspeth Avenue, Maspeth, New York 11378, from Carlos Escobar to 60-39 Maspeth LLC. Therefore, there is no dispute that 60-39 Maspeth LLC is the owner of the subject premises pursuant to a deed. An "owner" is not one of the categories given standing to maintain a summary eviction proceeding under RPAPL § 721. However, a "landlord or lessor" does have standing (see RPAPL § 721(1)). Petitioner attaches an assignment and assumption of lease dated March 24, 2022 (the same date as the deed), which assigns the lease between Carlos Escobar and Cindy San Nicolas (respondent), dated September 1, 2021, from Carlos Escobar to 60-39 Maspeth LLC (see petitioner's Exhibit B). Thus, 60-39 Maspeth LLC has a valid claim to being "landlord or lessor" of the subject property, via the assignment.
However, 60-39 Maspeth LLC is not the petitioner herein. Instead, the case is brought by "Carlos Escobar, Member of 60-39 Maspeth LLC, Successor-in-Interest to Carlos Escobar, Individually." Under LLC Law § 610, which is quoted in its entirety above, a member of an LLC is not a proper party to proceedings by or against the LLC, unless the member is enforcing a right against or liability to the LLC (see Singh v. Nadlan, LLC, 171 A.D.3d 1239, 1240 [2d Dept 2019] ["As a limited liability company, Nadlan is a separate legal entity from its members."]). While LLC Law § 610 restricts LLC members' ability to bring cases on behalf of the LLC, it also has the beneficial effect of shielding them from individual liability (see Board of Mgrs. of Beacon Tower Condominium v. 85 Adams St. LLC, 136 A.D.3d 680, 682 [2d Dept 2016] ["A member of a limited liability company 'cannot be held liable for the company's obligations by virtue of his [or her] status as a member thereof.'"] [quoting Grammas v. Lockwood Assoc., LLC, 95 A.D.3d 1073, 1074 [2d Dept 2012]]; Matias v. Mondo Props. LLC, 43 A.D.3d 367, 367-368 [2d Dept 2007]).
Consequently, Carlos Escobar, as "Member of 60-39 Maspeth LLC," lacked the ability to bring this summary eviction proceeding under LLC Law § 610. To the extent that he was attempting to bring the proceeding as an agent for 60-39 Maspeth LLC, an agent "is not a person authorized to maintain a summary proceeding" (Lehtonen v. Dellaquila, 67 Misc.3d 139 [A], 2020 NY Slip Op 50683[U], *1 [App Term, 2d Dept, 9th & 10th Jud Dists 2020]; see also Elias Props. Mtg. Inc. v. One Half Fashion Corp., 57 Misc.3d 138 [A], 2017 NY Slip Op 51307[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]). Thus, Carlos Escobar, as member of 60-39 Maspeth LLC, lacked standing to proceed herein and the standing defect cannot be cured by captioning the proceeding in the name of the proper party at this juncture (see Lehtonen, 2020 NY Slip Op 50683[U], *1-2; Whalen v. Veltre, 2002 NY Slip Op 40081[U], *2 [App Term, 2d Dept, 9th & 10th Jud Dists 2002] [citing Key Bank of NY v. Becker, 88 N.Y.2d 899, 900 [1996]]). Respondent's motion to dismiss is granted as a result. The court does not reach respondent's remaining arguments and denies the alternative request to serve and file an answer as moot.
CONCLUSION
Accordingly, for the foregoing reasons, respondent's motion to dismiss is granted and the petition is dismissed. The clerk shall issue a judgment dismissing the petition (see CPLR § 411). This Decision/Order will be filed to NYSCEF.