2600 Creston Ave. Owner LLC v. Minena, 60702/18

• Citation: 63 Misc.3d 1222 (A),114 N.Y.S.3d 822 (Table)
• Decision Date: 02 May 2019
• Docket Number: 60702/18
• Parties: 2600 CRESTON AVENUE OWNER LLC, Petitioner-Landlord, v. John MINENA & H.A., Respondents.
• Court: New York Civil Court

63 Misc.3d 1222 (A)
114 N.Y.S.3d 822 (Table)

2600 CRESTON AVENUE OWNER LLC, Petitioner-Landlord,
v.
John MINENA & H.A., Respondents.

60702/18

Civil Court, City of New York.

Decided on May 2, 2019

For Respondent, Mobilization for Justice, Inc., 424 East 147th Street, 3rd Floor, Bronx, NY 10455

For Petitioner, Candace C. Carponter, P.C., 31 Smith Street, Second Floor, Brooklyn, NY 11201

Shorab Ibrahim, J.

Recitation, as required by C.P.L.R. § 2219(a), of the papers considered in review of this motion.

Papers Numbered

Notice of Motion and Affidavits Annexed 1

Notice of Cross-Motion and Affidavits Annexed (Respondent) 2

Answering Affirmation (Petitioner's Reply & Opposition to Cross-Motion) 3

Replying Affirmation (Respondent's) 4

Exhibits (Pet's A-I & Resp's A-H) 5, 6

Other

After oral argument and upon the foregoing cited papers, the decision and order on this motion is as follows:

BACKGROUND & PROCEDURAL POSTURE

Petitioner, 2600 Creston Avenue Owner LLC, ("Petitioner"), commenced this summary holdover proceeding against John Minena¹ , ("Respondent"), alleging that Respondent's occupancy is unlawful as he is either a licensee or a squatter. On or about the initial court date, November 26, 2018, Respondent obtained counsel and the matter was adjourned to January 16, 2019. On or about January 2, 2019 Respondent filed an Answer. By stipulation dated January 15, 2019, the matter was adjourned to March 7, 2019. Thereafter, Petitioner moved to strike certain portions of Respondent's answer and for leave to conduct discovery. Respondent opposes Petitioner's motion and cross-moves for summary judgment arguing that the Notice to Quit, ("Notice"), is defective and that Petitioner has failed to name a necessary party, the estate of the tenant of record, ("estate"). There is no dispute that the tenancy is subject to rent-stabilization.

DISCUSSION

Respondent's Motion for Summary Judgment

Although made second in time, the court will address Respondent's motion first. Respondent argues he is entitled to summary judgment on two grounds. Respondent argues that while Petitioner may commence a holdover on dual grounds, the Notice to Quit must provide an explanation as to why the alternative grounds of squatter or licensee are necessary. Additionally, Respondent contends that the estate of Joanne Figueroa is a necessary party because a rent stabilized lease remains in effect through July 31, 2019.

In this court's view, the Petition is defective for failure to name the estate of the deceased tenant of record. "A lease for a term of years which has not expired is not terminated by the death of the lessee. Upon the death of the tenant the leasehold interest of the decedent becomes personal property of the estate. The estate is the party which is entitled to possession and is the proper party The landlord may not elect to evict a licensee from real property without first having...