Opinion
2007-664 W C.
Decided October 27, 2008.
Appeal from a decision of the Justice Court of the Village of Briarcliff Manor, Westchester County (Howard T. Code, J.), dated February 15, 2006, and an order of said court dated April 11, 2007. The decision, after a nonjury trial, awarded possession to Frances B. Todman. The order denied Andrew Thompson's motion seeking, in essence, to set aside the decision. The appeal is deemed from a final judgment of said court, entered May 8, 2007, awarding possession to Frances B. Todman (see CPLR 5520 [c]).
PRESENT: RUDOLPH, P.J., McCABE and SCHEINKMAN, JJ.
Final judgment reversed without costs and matter remanded to the court below for all further proceedings in accordance with the decision herein.
Following service of a notice purporting to terminate the month-to-month tenancy of the estate of Margaret J. Thompson, Frances B. Todman commenced this holdover proceeding against Margaret J. Thompson's son, Andrew Thompson, as executor of the estate of Margaret J. Thompson and as an occupant of the apartment. After a nonjury trial, a final judgment was entered awarding possession to Frances B. Todman. During the pendency of this appeal by Andrew Thompson, Frances B. Todman passed away, and the executors of her estate were substituted as petitioners. On this appeal, Andrew Thompson argues, inter alia, that Frances B. Todman failed to name a necessary party, to wit, his father, William Thompson; that his father is a nonpurchasing tenant protected under the Martin Act against eviction ( see General Business Law § 352-eee [c]); and that reversal of the final judgment and dismissal of the petition are therefore required. Petitioners assert that William Thompson no longer resides in the subject apartment and has surrendered his tenancy rights, and thus is not protected under the Martin Act and is not a necessary party.
The proof at trial established that William Thompson and his wife, Margaret J. Thompson, entered into a two-year lease for the subject apartment on January 31, 1979. Thereafter, said tenants executed two lease renewals. Following the expiration of the last lease renewal, the tenancy continued on a month-to-month basis. In June 1984, the building was converted to a cooperative. Since 1992, William Thompson has maintained another residence, and the building superintendent testified that he last saw William Thompson in the building six or seven years earlier. William Thompson testified that he never abandoned the leasehold or communicated an intention to terminate the lease, and that he continued to sleep at the subject apartment 30 nights out of the year and kept his furnishings there. After trial, the court made no finding as to whether William Thompson had abandoned the apartment or surrendered his interest therein, but it found that he had "transferred his primary residence" and thus was not entitled to protection under the Martin Act.
On the record before us, it is clear that there is a genuine and substantial issue as to whether William Thompson has surrendered or abandoned his interest in the apartment. If William Thompson has not surrendered or abandoned his interest, a proceeding cannot be maintained without first terminating his interest ( see Giacalone v Tatun , 17 Misc 3d 130 [A], 2007 NY Slip Op 51985[U] [App Term, 9th 10th Jud Dists 2007]; Lozynskyj v Leland , 9 Misc 3d 133 [A], 2005 NY Slip Op 51651 [App Term, 1st Dept 2005]). Accordingly, the matter must be remanded for a new trial for, inter alia, a determination of the threshold issue of whether William Thompson has surrendered or abandoned his interest. In addition, since William Thompson is clearly a person "who might be inequitably affected" by the judgment in this matter, he should be made a party to the proceeding (CPLR 1001 [a]; see Matter of Red Hook/Gowanus Chamber of Commerce v New York City Bd. of Stds. Appeals , 5 NY3d 452 ). In view of the foregoing, the final judgment is reversed and a new trial ordered, following the joinder of William Thompson, to determine the rights of the parties, including William Thompson, with respect to the apartment.
We note that at this juncture it is premature to pass upon the issue of whether a nonpurchasing tenant who does not reside in the apartment as his primary residence loses his Martin Act protection ( compare Tower 53 Assoc. v Bennett, 127 Misc 2d 666 [Civ Ct, NY County 1985], revd on other grounds 133 Misc 2d 801 [App Term, 1st Dept 1986], with 58 W. 58th St. Tenant Assn. v 58 W. 58th St. Assoc., 126 Misc 2d 500 [Sup Ct, NY County 1984]).
Rudolph, P.J., McCabe and Scheinkman, JJ., concur.