Mother Gaston 905 Corp. v. Lubrun

Mother Gaston 905 Corp. v Lubrun (2024 NY Slip Op 50411(U)) [*1] Mother Gaston 905 Corp. v Lubrun 2024 NY Slip Op 50411(U) [82 Misc 3d 130(A)] Decided on April 5, 2024 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 5, 2024 SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS PRESENT: : CHEREÉ A. BUGGS, J.P., LISA S. OTTLEY, PHILLIP HOM, JJ 2023-823 K C Mother Gaston 905 Corp., Respondent, against Marie Lubrun, Appellant, et al., Undertenants. Zabokritsky Law Group (Florence Zabokritsky of counsel), for appellant. Shiryak, Bowman, Anderson, Gill & Kadochnikov, LLP (Dustin Bowman and Matthew J. Routh of counsel), for respondent. Appeal from a final judgment of the Civil Court of the City of New York, Kings County (Kimberley Slade, J.), entered January 26, 2023. The final judgment, after a nonjury trial, awarded petitioner possession in a holdover summary proceeding. ORDERED that the final judgment is reversed, without costs, and the matter is remitted to the Civil Court for the entry of a final judgment dismissing the petition. The petition in this holdover proceeding alleges that petitioner is the owner of the premises, that there was "no written lease in effect between Petitioner and [occupant]," and that occupant is "now a month-to-month occupant." After a nonjury trial, the Civil Court (Kimberley Slade, J.) found that petitioner had established its prima facie case and entered a final judgment awarding petitioner possession. Petitioner failed to prove that it had any landlord-tenant relationship with occupant, as required to maintain an RPAPL 711 (1) proceeding (see JCF Assoc., LLC v Sign Up USA, Inc., 59 Misc 3d 135[A], 2018 NY Slip Op 50501[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]). For example, at trial it did not allege, let alone prove, that there was a written lease or oral agreement for possession between it and occupant, or that occupant had paid rent to petitioner. "As the right to maintain summary proceedings did not exist at common law and is solely a creation of the statute, it applies only in those cases authorized by the statute" (Dulberg v Ebenhart, 68 AD2d 323, 328 [1979]; see Castle Peak 2012-1 REO, LLC v New York Found. for [*2]Senior Citizens, 63 Misc 3d 157[A], 2019 NY Slip Op 50834[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]). Petitioner is therefore not entitled to a final judgment as this summary holdover proceeding, based upon RPAPL 711 (1), does not lie (see 130-50 228th, LLC v Moseley, 77 Misc 3d 139[A], 2022 NY Slip Op 51372[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; Jamaica Seven, LLC v Villa, 67 Misc 3d 138[A], 2020 NY Slip Op 50630[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]; JCF Assoc., LLC, 2018 NY Slip Op 50501[U]). In view of the foregoing, we reach no other issue. Accordingly, the final judgment is reversed and the matter is remitted to the Civil Court for the entry of a final judgment dismissing the petition. BUGGS, J.P., OTTLEY and HOM, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: April 5, 2024