Opinion
2011-09-21
Frederick VIGLIETTA, Appellant,v.Alain LAVOIE and Stella Louise Lavoie, Respondents.
DeJesu Maio & DeJesu, Huntington (Joseph C. DeJesu of counsel), for appellant.Law Offices of Michaelangelo Matera, Melville (Michaelangelo Matera of counsel), for respondents.
DeJesu Maio & DeJesu, Huntington (Joseph C. DeJesu of counsel), for appellant.Law Offices of Michaelangelo Matera, Melville (Michaelangelo Matera of counsel), for respondents.
Appeal from an order of the District Court of Suffolk County, Fourth District (Kevin J. Crowley, J.), dated February 5, 2010. The order granted respondents' motion to dismiss the petition in a summary proceeding brought pursuant to RPAPL 713(10).
ORDERED that the order is affirmed, without costs.
Petitioner commenced this summary proceeding pursuant to RPAPL 713(10) against his daughter and son-in-law, seeking to be restored to possession of the home he had previously resided in with them. In addition, he sought treble damages pursuant to RPAPL 853. Respondents moved to dismiss the petition, and the District Court granted their motion.
RPAPL 713(10) states that a special proceeding may be maintained upon the following ground:
“The person in possession has entered the property or remains in possession by force or unlawful means and he or his predecessor in interest was not in quiet possession for three years before the
time of the forcible or unlawful entry or detainer and the petitioner was peaceably in actual possession at the time of the forcible or unlawful entry or in constructive possession at the time of the forcible or unlawful detainer; no notice to quit shall be required in order to maintain a proceeding under this subdivision.”
The only allegation in the petition as to petitioner's interest in the subject property is that “the Premises were purchased by all parties involved.” He also alleged, however, that respondents “are the record owners of the subject premises.” While petitioner may have a claim to be an equitable owner of the premises, he was not the record owner and, thus, although he may have been in occupancy, he was not in “actual possession” or “constructive possession” at the time of the allegedly unlawful detainer and could not maintain an unlawful entry and detainer proceeding ( cf. Napier v. Spielmann, 196 N.Y. 575, 90 N.E. 1162 [1909], affg. on op. at 127 App.Div. 567, 111 N.Y.S. 983 [1908]; World Evangelization Church v. Devoe St. Baptist Church, 27 Misc.3d 141(A), 2010 N.Y. Slip Op. 50996(U), 2010 WL 2293141 [App. Term, 2d, 11th & 13th Jud. Dists. 2010] ). Petitioner has not provided any other basis for his claim that he is lawfully entitled to possession ( see Markun v. Weckstein, 100 Misc. 668, 166 N.Y.S. 736 [App. Term, 1st Dept. 1917] ), nor has he offered any other explanation for how respondents' detainer of the subject premises was unlawful. Accordingly, the petition was properly dismissed. It is noted that the question of title can properly be litigated in the Supreme Court action which was commenced by petitioner prior to the commencement of this summary proceeding.
We note, in any event, that “damages for the wrongful eviction, including lost rental income and treble damages, are not available in a summary proceeding brought pursuant to RPAPL 713(10), and must be secured separately” ( Saccheri v. Cathedral Props. Corp., 16 Misc.3d 111, 114, 842 N.Y.S.2d 676 [App. Term, 9th & 10th Jud. Dists. 2007] ).
Accordingly, the order granting respondents' motion to dismiss the petition is affirmed.
NICOLAI, P.J., MOLIA and IANNACCI, JJ., concur.