Opinion
L & T 83556/14
03-02-2015
Haladan Management Company, Petitioner-Landlord, v. The Estate of Elizabeth Ann Davies, 71 Orange Street Apartment 42, All Rooms Brooklyn, New York 11201, Respondent -Tenant. EMILY GORDON a/k/a EMILY ANN VICTORIA GORDON JOHN DOE JANE DOE, Respondents-Undertenants.
The attorney for petitioner is Michael T. Carr, Esq., and attorney for respondent is the Law Offices of Jaime Lathrop P.C.
The attorney for petitioner is Michael T. Carr, Esq., and attorney for respondent is the Law Offices of Jaime Lathrop P.C.
Recitation, as required by CPLR 2219(a), of the papers considered in the review of petitioner's motion for leave to conduct discovery and respondent's cross-motion for an order granting summary judgment and awarding attorneys' fees and severing all counterclaims and transferring them to Supreme Court:
PapersNumbered
Petitioner's Notice of Motion, Affirmation and Exhibits annexed1 Respondents' Notice of Cross-motion, Affirmation & Exhibits annexed2 Petitioner's Affirmation in Further Support and in Opposition to cross-motion3
Upon the foregoing cited papers, the Decision/Order in this motion is as follows:
This is a summary holdover proceeding commenced in August, 2014. Petitioner seeks to recover possession of the rent stabilized premises in that the respondent tenant of record, Estate of Elizabeth Ann Davies, as well as Emily Gordon, John Doe and Jane Doe are licensees of the tenant of record Elizabeth Ann Davies, who is deceased.
The petition states that the tenant of record died on December 25, 2014, "thus making her lease with the landlord void." It further states that "Respondent The Estate of Elizabeth Ann Davies, is the occupant in possession of said premises, who entered into possession pursuant to a void written rental agreement," and that respondents/undertenants "... are occupants in possession of the premises, who entered into possession pursuant to an agreement with Respondent The Estate of Elizabeth Ann Davies."
Respondents were served with a Ten (10) Day Notice to Quit by conspicuous place service at the subject premises. The Notice to Quit states that all named respondents, including the Estate of Elizabeth Ann Davies, are occupying the premises as licensees of Elizabeth Ann Davies.
Respondent Emily Gordon appeared by counsel for her Article 81 Guardian, and submitted an Answer in which she raises succession as her First Affirmative Defense, stating that she is the daughter of the deceased tenant of record, and has resided in the subject premises her entire life. She also raises three counterclaims in which see seeks attorneys' fees, damages for abuse of process and damages for malicious prosecution.
Petitioner brings the instant motion seeking an order granting leave to conduct discovery, specifically requesting an examination before trial of Emily Gordon and Valerie Saint-Rossy, a neighbor of respondent. Petitioner further seeks permission to file a notice for discovery and inspection requesting certain documents and information relating to respondent Emily Gordon's claims of succession.
Respondent Emily Gordon filed and served a Cross-Motion for Summary Judgment, as well as for an Order awarding attorneys' fees and severing all counterclaims, transferring them to Supreme Court. In the affirmation in support of the cross-motion, respondent's counsel points out that the tenant of record, Elizabeth Ann Davies, duly executed a renewal lease approximately four months before her death and mailed it to petitioner. Attached to the Cross motion as Exhibit "L" is a copy of that lease, signed and dated October 25, 2012, in which Ms. Davies elected a two year term, commencing January 16, 2013, and terminating January 15, 2015. Also attached is a letter to petitioner purportedly sent by her along with the returned lease. Petitioner does not dispute that the renewal lease was executed, but states that it became "void" upon the tenant's death.
Respondent asserts in her cross-motion that the Notice to Quit fails to state a cause of action when it alleges that the respondent estate is in possession of the subject premises pursuant to a void rental agreement and that Emily Gordon is a licensee. Respondent points out that the death of the tenant of record does not void a lease as asserted by petitioner, but that the unexpired lease becomes the property of the estate until its expiration.
Respondent also argues that the proceeding is improper because it names only the "Estate of Elizabeth Ann Davies," and fails to name a personal representative of the estate as required by law. Respondent further argues that the matter is procedurally improper because the respondent estate is in possession of the subject premises pursuant to an unexpired lease term and has not surrendered possession.
A lease for a fixed term does not terminate upon the death of the tenant. Rather, it becomes the property of the tenant's estate. Westway Plaza Associates v. Doe, 179 AD2d 408, (1st Dept 1992), Remford Corp. v. Rosenfeld, 274 AD2d 769 (1st Dept 1948). The instant proceeding was brought prior to the expiration of the lease of Elizabeth Ann Davies. The lease does not expire until January 15, 2015, and this proceeding was commenced in August, 2014. When Ms. Davies died, her lease was not "void" as alleged by petitioner, but it became the property of her estate. It remains a valid lease until its expiration. As this matter was commenced prior to the expiration of a valid lease, it was brought prematurely, and must be dismissed as against the Estate of Elizabeth Ann Davies.
Additionally, as an estate is not a legal entity, any action against an estate must be brought against the executor or administrator in his or her representative capacity. Grosso v. Estate of Gershenson, 33 AD3d 587 (2d Dept 2006). Here, petitioner named only the estate, not an executor or administrator in that capacity. In the absence of a recognized estate representative, petitioner could have petitioned Surrogate's Court to have an administrator appointed. Westway Plaza Associates v. Doe, 179 AD2d at 410; 100 W. 72nd Assocs. v. Murphy, 144 Misc 2d 1036 (Civ Ct NY Co 1989). As petitioner did not name an executor or administrator in this action, the petition is defective and must be dismissed for this reason as well.
Given that there is an unexpired lease which has passed to the estate of the tenant of record, Elizabeth Ann Davies, and the matter must be dismissed as against the Estate of Elizabeth Ann Davies, it must also be dismissed as against Emily Gordon a/k/a Emily Ann Victoria Gordon, John Doe and Jane Doe, as alleged licensees of Elizabeth Ann Davies.
Real Property Actions and Proceedings Law (RPAPL) ??713(7) permits a summary eviction proceeding to be brought against a licensee (after a ten day notice to quit has been served) upon the grounds that, "He is a licensee of the person entitled to possession of the property at the time of the license, and (a) his license has expired, or (b) his license has been revoked by the licensor, or (c) the licensor is no longer entitled to possession of the property..."
RPAPL ??721 sets forth who may maintain a proceeding against a licensee. RPAPL ??721 (7) provides that the proceeding to remove a licensee from real property may be brought by, "The person entitled to possession of the property occupied by a licensee who may be dispossessed."
In the instant proceeding, the party entitled to possession of the subject premises is the Estate of Elizabeth Ann Davies, not petitioner. Petitioner may not commence a licensee proceeding pursuant to RPAPL ??713(7) to evict Ms. Davies' daughter Emily Gordon or the other undertenants from the premises, without first legally recovering possession from the licensor, Elizabeth Davies or her estate, the "person" entitled to possession of the property occupied by her, the alleged licensee. As petitioner has not legally recovered possession from Elizabeth Ann Davies or her estate, it has no standing to bring a summary eviction proceeding against her daughter or the other alleged licensees. (See 100 W. 72nd St. Assocs. v. Murphy, 144 Misc 2d at 1039 ). As such, the petition must be dismissed as against Emily Gordon a/k/a Emily Ann Victoria Gordon, John Doe and Jane Doe.
Accordingly, for the reasons stated above, respondent's cross-motion is granted to the extent that summary judgment is granted and the petition is dismissed. Petitioner's motion is denied.
This foregoing constitutes the Decision and Order of this court.
Dated:New York, New York
March 2, 2015
___________________________
LESLIE A. STROTH, J.H.C.