Barbarita v. Shilling
| Decision Date | 13 May 1985 |
| Citation | 111 A.D.2d 200,489 N.Y.S.2d 86 |
| Parties | Frank BARBARITA et al., Appellants, v. William A. SHILLING, Respondent. William A. SHILLING, Respondent, v. Frank BARBARITA et al., Appellants. |
| Court | New York Supreme Court — Appellate Division |
Gilberg & Gilberg, Mount Vernon (David C. Gilberg, Mount Vernon, of counsel), for appellants.
Curtiss & Leibell, P.C., Carmel (William A. Shilling, Jr., Carmel, of counsel), for respondent.
Before MOLLEN, P.J., and TITONE, LAZER and RUBIN, JJ.
MEMORANDUM BY THE COURT.
In an action for specific performance of a contract to sell real property and a summary proceeding to recover possession of that property, Frank Barbarita and Rocco Barbarita appeal from so much of an order of the Supreme Court, Putnam County, entered June 13, 1984, as granted William A. Shilling's motion for $700 per month rental for the use and occupation of the subject premises.
Order reversed insofar as appealed from, with costs, and the matter is remitted to the Supreme Court, Putnam County, for further proceedings in accordance herewith.
William A. Shilling owns a tract of land upon which Frank and Rocco Barbarita currently operate a real estate office. Commencing in 1965, the relationship between the parties was governed by a variety of lease agreements, the last of which allegedly was to expire on November 30, 1981. On June 2, 1981, the parties entered into a contract of sale whereby the Barbaritas were to purchase the property from Shilling. Title has not yet passed and the Barbaritas seek specific performance of the contract, which was contingent upon Shilling obtaining marketable title. Shilling, who contends that he has been unable to obtain marketable title, subsequently commenced a summary proceeding to obtain possession of the property. Upon the Barbaritas' motion, the summary proceeding was transferred to the Supreme Court, and a joint trial was ordered. Shilling then obtained an order directing the Barbaritas to pay him $700 a month for the use and occupancy of the property pendente lite. The Barbaritas appeal.
It is well settled that the legal owner of real property is not entitled to an award for use and occupancy from a contract vendee in possession unless there also exists a landlord-tenant relationship between the parties (see 14 Second Ave. Realty Corp. v. Steven Corp., 16 A.D.2d 751, 227 N.Y.S.2d 278, affd. 12 N.Y.2d 919, 238 N.Y.S.2d 99, 188 N.E.2d 404) or the situation falls within the ambit of RPAPL 713(9) (cf. Orange County Development Corp. v. Perez, 67 Misc.2d 980, 325 N.E.2d 608; ...
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