City of New York v. Mississippi Holding Ltd.

• Citation: 126 Misc.2d 865,483 N.Y.S.2d 956
• Parties: The CITY OF NEW YORK, Petitioner-Landlord, v. MISSISSIPPI HOLDING LTD., Respondent-Tenant. -Tenant Part 52
• Decision Date: 09 January 1985
• Court: New York City Court

Page 956

483 N.Y.S.2d 956

126 Misc.2d 865

The CITY OF NEW YORK, Petitioner-Landlord, v. MISSISSIPPI HOLDING LTD., Respondent-Tenant.

Civil Court of the City of New York,

New York County,

Landlord-Tenant Part 52.

Jan. 9, 1985.

Frederick A.O. Schwarz, Jr., Corp. Counsel, New York City (Robin W. Weiner, New York City, of counsel), for petitioner-landlord.

No appearance by respondent-tenant.

DAVID B. SAXE, Judge.

Moored to Pier 84 in the North River, which to those less nautically inclined is also known as the Hudson River, is the riverboat "Mark Twain" owned by the respondent Mississippi Holding Ltd. ("Mississippi").

The Mark Twain has occupied berthing space adjacent to Pier 84 under a written agreement with New York City's Department of Ports and Terminals. Under the contract, a day-to-day license agreement, Mississippi was granted permission to use the premises for berthing and was also granted a right of access over the pier in order to arrive at the berth. The petitioner then terminated this agreement by service of a thirty (30) day notice and this eviction action followed.

At an inquest, I inquired of the City's attorney concerning the propriety of seeking to recover the berthing space by means of a summary proceeding.

The respondent-Mississippi's status is that of a licensee. (Rasch, New York Landlord & Tenant Summary Proceedings, 2nd Ed., Sec. 71). The petitioner contends that it has properly terminated the respondent's license and that a summary proceeding brought by it is the appropriate mechanism by which to recover possession (RPAPL Secs. 713(7), 721(7)).

The question is raised as to whether the use of a summary proceeding is a proper method by which to recover berthing space. Article 7 of the Real Property Actions and Proceedings Law ("RPAPL") governs the use of summary proceedings and is entitled "Summary Proceeding to Recover Possession of Real Property". The lead section of that article, RPAPL Sec. 701, reiterates, in definite terms, that special proceedings brought under this article are ones for the recovery of real property.

The threshold question here is whether this is an action for the recovery of real property.

Although the right of access granted to the permittee to traverse the pier in order to gain access to their boat certainly concerns "real property" and constitutes either an easement or a license, (17 N.Y.Jur., Easements and Licenses, Secs. 1, 3), the primary goal of the petitioner here is not the recovery of the right of access but rather recovery of the berthing space from the respondent.

Focussing our inquiry then upon the berthing space, a berth is defined as "The place where a ship lies at anchor, or at a wharf" (Webster's New Collegiate Dictionary (1961)). That space which is directly adjacent to Pier 84, is the water upon which the riverboat now rests, and is the space which the petitioner now seeks to recover. Does this berthing space constitute real property?

Real Property Law Sec. 2 states that "The terms 'real property' and 'lands' ... are co-extensive in meaning with lands, tenements and hereditaments." And, "word land...