Kew Gardens Portfolio Holdings, LLC v. Bucheli

Kew Gardens Portfolio Holdings, LLC v Bucheli (2020 NY Slip Op 51137(U)) [*1] Kew Gardens Portfolio Holdings, LLC v Bucheli 2020 NY Slip Op 51137(U) [69 Misc 3d 129(A)] Decided on October 2, 2020 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports. Decided on October 2, 2020 SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS PRESENT: : THOMAS P. ALIOTTA, P.J., MICHELLE WESTON, WAVNY TOUSSAINT, JJ 2019-1071 Q C Kew Gardens Portfolio Holdings, LLC, Appellant, against Ronald Bucheli and Barbara Pinargote, Respondents, et al., Occupants. Boris Lepikh of counsel, for appellant. Luis F. Echeverria of counsel, for respondent (no brief filed). Appeal from an order of the Civil Court of the City of New York, Queens County (Sergio Jimenez, J.), dated May 14, 2019. The order granted a motion by occupants Ronald Bucheli and Barbara Pinargote to dismiss the petition in a licensee/squatter summary proceeding. ORDERED that the order is reversed, without costs, and the motion by occupants Ronald Bucheli and Barbara Pinargote to dismiss the petition is denied. In this summary proceeding, the 10-day notice to quit and the petition state that Ronald Bucheli and Barbara Pinargote (occupants) entered into occupancy as licensees of the former tenant of record, Jorge Alban, and that their license expired upon Alban's death. In the alternative, the notice and the petition state that occupants are squatters who entered without the permission of the person entitled to possession. Landlord appeals from an order of the Civil Court (Sergio Jimenez, J.) dated May 14, 2019 granting occupants' motion to dismiss, holding that the grounds of licensee and squatter cannot be stated in the alternative without an explanation as to why landlord is unaware of occupants' status (citing City of New York v Bullock, 159 Misc 2d 716 [Civ Ct, Kings County 1993], affd for reasons stated below 164 Misc 2d 1052 [App Term, 2d Dept, 2d & 11th Jud Dists 1995]). In our view, the notice to quit and petition were reasonable under the attendant circumstances (see Oxford Towers Co., LLC v Leites, 41 AD3d 144 [2007]; Hughes v Lenox Hill Hosp., 226 AD2d 4 [1996]) and were sufficient to permit occupants to prepare a defense. Notably, occupants are in the best position to know the circumstances under which they entered into occupancy, and they pointed to no prejudice or confusion resulting from the alternative pleading. It is also noted that, subsequent to the Bullock case, the Appellate Division, Third Department, held that alternative pleading is permitted in a summary proceeding (Matter of Kern v Guller, 40 AD3d 1231 [2007]). To the extent that Bullock is to the contrary, it should not be [*2]followed. Accordingly, the order is reversed and occupants' motion to dismiss is denied. ALIOTTA, P.J., WESTON and TOUSSAINT, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: October 2, 2020