170 West 85th Street Tenants Ass'n v. Cruz

• Decision Date: 23 May 1991
• Citation: 173 A.D.2d 338,569 N.Y.S.2d 705
• Parties: TH STREET TENANTS ASSOCIATION and 170 West 85th Street Housing Development Fund Corporation, Petitioners-Respondents, v. Nilda CRUZ, Respondent, and Freddy Mosquera, Respondent-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 705

569 N.Y.S.2d 705

173 A.D.2d 338

170 WEST 85TH STREET TENANTS ASSOCIATION and 170 West 85th Street Housing Development Fund Corporation Petitioners-Respondents, v. Nilda CRUZ, Respondent and Freddy Mosquera, Respondent-Appellant.

Supreme Court, Appellate Division First Department.

May 23, 1991.

Before MURPHY, P.J., and MILONAS, ROSS and RUBIN, JJ.

MEMORANDUM DECISION.

Order of the Appellate Term, First Department (entered October 27, 1989), which affirmed a judgment of the Civil Court, Housing Part (Steven Zarkin, H.J.), awarding a final judgment of possession to petitioner-landlord, unanimously affirmed, without costs.

Petitioner operates the subject building as net lessee and managing agent for the owner, the City of New York, under the Tenant Interim Lease Program. Respondent Nilda Cruz is the tenant of record of apartment 3NE. Respondent Freddy Mosquera is the occupant of apartment 3NE who, although unrelated to the tenant, claims to have lived "as a family with Nilda Cruz for almost 10 years." The net lease requires petitioner tenants association to terminate the tenancy of any tenant who sublets or assigns an apartment without the prior written consent of the Division of Housing Preservation and Development ("HPD"). It is uncontested that no such consent was obtained from HPD. The Housing Judge found that respondent Cruz had not resided in the apartment for at least five months. The court further found that there was no legal relationship between Cruz and the occupant Mosquera which would entitle him to retain possession of the premises.

On this appeal, respondent-occupant Mosquera first contends that Civil Court lacked subject matter jurisdiction over him because he did not receive statutory notice, either a 30-day notice as required by Real Property Law § 232-a or a 10-day notice as required by the Real Property Actions and Proceedings Law § 713(3) or (7).

At the outset, we note that Civil Court is vested with subject matter jurisdiction over housing matters by statute (N.Y. City Civ.Ct. Act § 110). The failure of a petitioner to comply with a statutory notice requirement, where applicable, represents merely the failure to comply with a condition precedent to suit and cannot properly be said to affect the court's jurisdiction. In the instant proceeding, respondent can point to no statutory basis requiring him to be served with notice. Absent a surrender of possession by the tenant (see, Matter of Eight Cooper Equities v. Abrams, 143 Misc.2d 52, 54-55, 539 N.Y.S.2d 673 [surrender is accomplished by vacating the premises and returning the keys to landlord], which is not established by the record before us, the lessor must obtain a judgment of possession against the lessee pursuant to RPAPL § 711 and may not proceed directly against the undertenant, whether licensee, subtenant or occupant, pursuant to RPAPL § 713 (100 West 72nd St. Assoc. v. Murphy, 144 Misc.2d 1036, 1039, 545 N.Y.S.2d 901). Therefore, the 10-day notice provision of RPAPL § 713 is inapposite, and the 30-day notice provision of Real Property Law § 232-a is applicable only to respondent Cruz as the immediate tenant of the lessor.

The rights of a person whose claim to possession derives from the lessee are subordinate and are extinguished by a judgment of possession in favor of the lessor. Due process requires only that, for the warrant to be effective against a subtenant, licensee or occupant, he be made a party to the proceeding, either by naming him in and serving him with the petition and...