61st St. Realty Assocs. v. Morales
| Citation | 2022 NY Slip Op 33885 (U) |
| Decision Date | 15 November 2022 |
| Docket Number | L&T Index No. 312036/21,Mot. Seq. No. 1 |
| Parties | 61ST STREET REALTY ASSOCIATES, Petitioner, v. DEBORAH MORALES et al. Respondents |
| Court | New York Civil Court |
Petitioner's attorneys:
Rosenblum & Bianco, LLP
Attn Tracy William Boshart, Esq.
Respondent's attorneys:
Brooklyn Legal Services
Attn Casey Quinn Gilfoil, Esq.
Recitation, as required by CPLR 2219(a), of the papers considered in the review of respondent's motion for summary judgment, listed by NYSCEF Number: 11,12,13,14,15,16,17,18,19,20,21,22,23,24,25,26
After the expiration of a Ten (10) Day Notice of Termination dated November 11, 2021 (Termination Notice), petitioner commenced this summary proceeding seeking to recover possession of Apartment 2B (Apartment) in the building located at 445 61st Street, in Brooklyn (Building). The Termination Notice asserts that respondents are licensees, and that Emmanuel Mayhoub Mubaraz (Tenant of Record) died on or about June 21, 2021, with a rent-stabilized lease in effect and expiring on November 30, 2022. The Termination Notice further asserts that respondent Deborah Morales claimed to be a family member residing in the Apartment pursuant to a license.
The notice then asserts petitioner's belief that the Tenant of Record died intestate, with an estate valued at less than $30,000, and that his estate passed to respondents, terminating the estate and its interest. The termination of the estate's interest, the Termination Notice asserts, terminated respondent's rights of possession.
Respondents, represented by counsel, interposed an answer setting forth admissions, denials, and denials of sufficient information to for a belief as to the truth or falsity of the allegations of the petition, and asserting an affirmative defense of succession. Respondents now move for summary judgment on the grounds that a valid unexpired lease for the premises exists.
Respondents argue that an unexpired lease must be terminated prior to the commencement of a proceeding to recover possession, and that here the lease remains in effect, requiring dismissal. In opposition, petitioner argues that respondents waived the right to make those assertions by failing to raise them in the answer, precluding relief either under CPLR 3212 or CPLR 3211. Petitioner urges that EPTL § 4-1.1, regulating the distribution of an intestate decedent's estate, is self-executing, resulting in the automatic distribution of the estate, including the Tenant of Record's leasehold interest in the Apartment, that upon its distribution, the estate of the Tenant of Record ceased to have any interest in the Apartment, and that the distribution entitled petitioner to seek possession. Petitioner argues that prior judicial determinations inconsistent with its assertions misconstrue the law and that this court should not follow them.
A party seeking summary judgment must "show that there is no defense to the cause of action or that the cause of action or defense has no merit" (CPLR 3212). Respondents' answer, in addition to raising an affirmative defense that is not the subject of this motion, includes denials of various assertions in the petition. Specifically, the answer denies the assertion that respondents are licensees and no longer have the right to occupy the apartment as well as the assertion that respondents continue in occupancy after the expiration of their term. The instant motion, asserting that summary judgment is warranted because a lease remains in effect, granting them a right to occupy the Apartment flows directly from those denials. The motion for summary judgment is therefore properly before the court.
Summary judgment is a drastic remedy, one to be granted only when there is no doubt that no triable issue of material fact exists (Rotuba Extruders v Ceppos, 46 N.Y.2d 223 [1978]). The granting of summary judgment is the procedural equivalent of a trial (Folk v Goodman, 7 N.Y.2d 87 [1959]), and the proponent of summary judgment is required to make a prima facie showing of entitlement to judgment as a matter of law (Winegrad v. New York, Univ. Med. Center, 64 N.Y.2d 851 [1985]). If the movant succeeds in doing so, the party opposing the motion must demonstrate, through the presentation of evidence in admissible form, the existence of a factual issue requiring trial, (Zuckerman v City of New York, 49 N.Y.2d 557, 560 [1980]). The court notes that petitioner raises no issues of fact in opposition to summary judgment, having chosen to submit no affidavit. Instead, petitioner argues that as a matter of law, summary judgment is not warranted. It is undisputed that the term of the lease issued to the deceased Tenant of Record has not expired.
When a tenant dies, the tenant's "leasehold rights become the property of [the tenant's] estate and the estate was a necessary party" (Waterview Owners, Inc v Pacimeo, 13 Misc.3d 130[A} [App Term 2d & 11th Jud Dists 2006]). There is thus no question that an extant leasehold interest passed to the estate of the Tenant of Record.
Petitioner however, errs in asserting that distribution of the leasehold interest occurred automatically pursuant to EPTL §4-1.1. The statute provides, in pertinent part, that "The...
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