BH 2628, LLC v. Zully's Bubbles Laundromat, Inc.

• Decision Date: 29 September 2017
• Citation: 57 Misc.3d 63,61 N.Y.S.3d 809
• Parties: BH 2628, LLC, Appellant, v. ZULLY'S BUBBLES LAUNDROMAT, INC., Respondent, et al., Undertenants.
• Court: New York Supreme Court — Appellate Term

57 Misc.3d 63
61 N.Y.S.3d 809

BH 2628, LLC, Appellant,
v.
ZULLY'S BUBBLES LAUNDROMAT, INC., Respondent, et al., Undertenants.

Supreme Court, Appellate Term, Second Dept., 2, 11 & 13 Judicial Dist.

Sept. 29, 2017.

61 N.Y.S.3d 810

Stern & Stern, Esqs. (Pamela Smith, Esq.), for appellant.

Castro Law, PLLC (John C. Castro, Esq.), for respondent.

PRESENT: DAVID ELLIOT, J.P., MICHAEL L. PESCE, MARTIN M. SOLOMON, JJ.

Appeal from a final judgment of the Civil Court of the City of New York, Queens County (Ulysses Bernard Leverett, J.), entered June 17, 2014. The final judgment, after a nonjury trial, dismissed the petition in a summary proceeding brought pursuant to RPAPL 713(5).

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 awarding possession to petitioner.

In this summary proceeding commenced pursuant to RPAPL 713(5) by a purchaser in foreclosure, petitioner appeals from a final judgment which, after a nonjury trial, dismissed the petition. The Civil Court found that landlord had failed to prove its case, as occupant had a valid lease and had not been named in the foreclosure action. The court held, accordingly, that occupant was not bound by the judgment of foreclosure.

As the lease with the former owner upon which occupant's defense to this proceeding is based was signed several months after a notice of pendency had been filed in connection with the foreclosure action, occupant was, contrary to the Civil Court's holding, bound by the judgment of foreclosure (see CPLR 6501 ) and the lease was voidable by petitioner following its purchase in foreclosure (see id.; West 56th & 57th St. Corp. v. Pearl, 242 A.D.2d 508, 662 N.Y.S.2d 312 [1997] ). Petitioner demonstrated that it had served a notice voiding the lease (see Matter of Fresh Meadows Jewish Ctr. [Gordon], 75 A.D.2d 814, 815, 427 N.Y.S.2d 476 [1980] ).

RPAPL 713(5) allows for a special proceeding to be maintained after service of a 10–day notice to quit where "the property has been...