Summary
In Stier v. President Hotel (28 A.D.2d 795, 796), it is aptly noted that "[t]he assertion of the right to possession without any statement of the facts upon which the proceeding was predicated, was, in any event, a bare conclusion, and rendered the petition jurisdictionally defective * * * (Giannini v. Stuart, 6 A.D.2d 418; Potter v. New York Baptist Mission Soc., 23 Misc. 671; Reich v. Cochran, 201 N.Y. 450, mot. for rearg. den. 203 N.Y. 547; 14 Carmody-Wait 2d, New York Practice, § 90:212)."
Summary of this case from Dulberg v. EbenhartOpinion
June 28, 1967
Appeal from an order of the County Court of Sullivan County, entered on January 18, 1967, which affirmed a judgment and warrant of eviction of the Justices' Court of the Town of Liberty made on the 22nd day of July, 1966 in favor of the petitioner-respondent. On or about the 11th day of May, 1966, the Sullivan County National Bank of Liberty, as mortgagee, commenced a foreclosure action naming the respondents-appellants as parties defendant. The President Hotel, Inc., was the owner in fee of the premises covered by the mortgage, and Don Mar Operating Co., Inc., was the lessee of the premises under a lease dated April 15, 1966, and terminating on October 15, 1966. On or about the 14th day of June, 1966, the petitioner-respondent was appointed receiver in the mortgage foreclosure action by order of the Supreme Court, Sullivan County. On June 15, 1966, the Receiver wrote a letter to the President Hotel, Inc., enclosing a copy of the order appointing him receiver in the foreclosure action, wherein he demanded immediate possession of the real and personal property of the President Hotel, Inc. On June 27, 1966, the receiver instituted summary proceedings in the Justices' Court to recover possession of the premises, naming the appellants as respondents. The petition in the summary proceeding alleged, among other things, that the facts on which the proceeding was based were the foreclosure action; the order appointing the receiver; that the petitioner had demanded possession of the premises and had not received possession and had not received rents. It was further alleged that the appellants continued in possession of the premises without his permission. A most liberal construction of the petition indicates that the proceeding was brought to recover possession of the premises by reason of a default in the payment of rent, pursuant to subdivision 2 of section 711 Real Prop. Acts. of the Real Property Actions and Proceedings Law which provides that a special proceeding may be maintained to recover possession of premises where "The tenant has defaulted in the payment of rent, pursuant to the agreement under which the premises are held and a demand of the rent has been made, or at least three days' notice in writing requiring, in the alternative, the payment of the rent, or the possession of the premises, has been served upon him as prescribed in section 735." The petition fails to allege a default in the payment of rent, or a demand for payment of rent, or the giving of the required notice to the tenant. It is, therefore, insufficient upon its face. The appellants, however, made no motion directed to the petition on these grounds. Assuming arguendo that these apparently jurisdictional defects could be waived by proceeding to trial without objection, the record discloses, in the opening statement of the counsel for the respondent, that an order of eviction was sought by reason of a demand for payment of rent and refusal of payment. The assertion of the right to possession without any statement of the facts upon which the proceeding was predicated, was, in any event, a bare conclusion, and rendered the petition jurisdictionally defective, as the appellant argues ( Giannini v. Stuart, 6 A.D.2d 418; Potter v. New York Baptist Mission Soc., 23 Misc. 671; Reich v. Cochran, 201 N.Y. 450, mot. for rearg. den. 203 N.Y. 547; 14 Carmody-Wait 2d, New York Practice, § 90:212). The testimony and evidence indicate that no actual demand for the payment of rent by the tenant was made, and that the rent under the lease was not due until August 15, 1966. There is also no evidence of a refusal of the tenant to pay the rent when due. Under the circumstances we do not reach the main issue raised at the trial by the respondent that the lease dated April 15, 1966 between President Hotel, Inc., and Don Mar Operating Co., Inc., did not comply with the requirements of section 909 Bus. Corp. of the Business Corporation Law. The Justices' Court granted judgment to the respondent directing the removal of the appellants from the premises determining that the proceeding was brought "for the removal of the respondents * * * by virtue of the fact that said Respondents, Don Mar Operating Co., Inc., Sarah Bant Roth and Harry Roth have intruded into or squatted upon the said property without the permission of the person entitled to possession of the same and the occupancy of said property by the said respondents has continued without such permission." There is no testimony or evidence in the record which would warrant the granting of relief upon these grounds. There were no allegations in the petition showing that the appellant settled on the premises without legal authority or entered thereon without right, the traits of squatters and intruders ( Williams v. Alt, 226 N.Y. 283). To the contrary, the petition alleged possession pursuant to a lease, thus signifying a rightful entry, the very antithesis of the "squatter theory". Order reversed, on the law and the facts, and petition dismissed, with one bill of costs to appellants. Gibson, P.J., Herlihy, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Staley, Jr., J.