Desiano v. Fitzgerald, LT-676-15
| Decision Date | 29 August 2016 |
| Docket Number | LT-676-15 |
| Citation | 2016 NY Slip Op 26273 |
| Parties | Virginia Desiano, Petitioner/Landlord, v. Jane Fitzgerald, Respondent. |
| Court | New York County Court |
1 Croton Point Avenue
(914) 271-6601
Greher Law Offices, P.C.
1161 Little Britain Road, Suite B
New Windsor, New York 12553
(845) 567-1002
Attn: Kathryn M. Lang, Esq.
This is a non-payment proceeding commenced by Virginia Desiano ("Petitioner") against Jane Fitzgerald ("Respondent") seeking $17,600.00 in rental arrears including late fees, attorney's fees, and possession of 121 Viewpoint Terrace, Peekskill, New York 10566 ("the subject premises"). After the parties were unable to settle this case, the Court permitted the parties to submit motions.
On December 28, 2015, the Petitioner commenced this non-payment proceeding against the Respondent seeking $17,600.00 in rental arrears, including late fees, attorney's fees, and possession of the subject premises (Respondent's Exh. "E").
On February 2, 2016, the parties made a first appearance in court, at which time the Respondent filed her answer. The case was adjourned to February 23, 2016.
On February 23, 2016, the parties appeared in Court. The case was adjourned to April 12, 2016.
On April 12, 2016, the parties appeared in Court and requested and was granted permission to file motions. Thereupon, the Court set the following motion schedule: May 3, 2016 for Respondent's motion; May 10, 2016 for opposition; May 17, 2016 for reply, if any; and a decision on June 7, 2016. The Petitioner also represented that she filed a Chapter 13 Bankruptcy Petition.
On April 14, 2016, the Court notified the parties to appear on April 26, 2016.
On April 26, 2016, the parties appeared and the Court stayed the motions and directed the Petitioner to notify the Chapter 13 Trustee of the commencement of this case and inquire if he takes any position or interest in this matter. The case was adjourned to 5/24/16.
On May 24, 2016, the parties appeared and the case was adjourned to June 7, 2016.
On June 7, 2016, the Petitioner tendered to the Respondent a cashier's check in the sum of $4122.00 plus interest. Thereupon, the Respondent withdrew her counterclaim for the return of her escrow deposit. The Court was presented with a letter from the Chapter 13 Trustee who stated that he will not take any position or state any interest in the proceeding. Based upon this letter, the Court determined that the case should proceed and set the following motion schedule: June 28, 2016, motion by Respondent; July 12, 2016, opposition by Petitioner; and July 26, 2016, reply, if any, by Respondent.
On June 28, 2016, the Respondent filed a Motion for Summary Judgment with an accompanying Memorandum of Law.
On July 25, 2016, the Petitioner filed a Cross Motion for Summary Judgment.1
On July 27, 2016, the Respondent filed a Reply Affidavit.
On August 9, 2016, the parties appeared and the Court marked the motions fully submitted.
The Petitioner alleges that the Respondent committed a breach of contract when she failed to make her contractual payments when they became due (Lang Affirmation at ¶ 6). Petitioner also alleges that she does have standing to bring the instant non-payment proceeding notwithstanding the fact that the subject premises2 are in foreclosure, because she has not yet surrendered the premises (Lang Affirmation at ¶¶ 8-10).
The Respondent contends that the Petitioner lacks standing to commence the present proceedings because she agreed to surrender the subject premises as a part of her Chapter 13 proceeding (Klein Memo of Law at pp. 2-3; Fitzgerald Affidavit at ¶¶ 12-13). Further, the Respondent argues that her tenancy is protected under Real Property Law §339-kk (Klein Memo of Law at p. 3; Fitzgerald Affidavit at ¶¶ 7-8). Lastly, the Respondent argues that she is entitled to attorney's fees if she prevails and that the Petitioner should be sanctioned because she commenced the instant frivolous proceedings regarding the subject premises after she agreed to surrender said premises as part of her Chapter 13 Plan that was confirmed prior to the commencement of these proceedings (Klein Memo of Law at pp. 5-6).
The Respondent argues that Petitioner lacks standing to commence the instant proceedings because she agreed to surrender the subject premises as part of a Chapter 13 reorganization plan that was confirmed by the Bankruptcy Court on December 14, 2015 (Klein Memo of Law at pp. 2-3). In support of this argument, the Respondent cites Kelsey v. McTigue, 171 A.D. 877, 157 N.Y.S. 730 (1916) for the curious proposition that Petitioner has failed to prove that "she has an estate in fee or for life, or for term of years in the property the recovery of which is sought" (Klein Memo of Law at p. 2).3
When one without the requisite grievance does bring suit, and it's dismissed, the plaintiff is described as lacking standing to sue' and the dismissal as one for lack of subject matter jurisdiction.
Siegel, New York Practice §136 (5th ed.).
In fact, the issue of "[s]tanding goes to the jurisdictional basis of a court's authority to adjudicate a dispute." Matter of Eaton Associates v. Egan, 142 AD2d 330, 334-335, 535 N.Y.S.2d 998 (3d. Dept. 1988), [citing Allen v. Wright, 468 U.S. 737 at 750-751, 104 S. Ct. 3315, 82 L.Ed.2d 556 (1984)]. It is axiomatic that a summary proceeding commenced by a party without the requisite standing must be dismissed. See, Metropolitan Realty Group v McSwain, 27 Misc 3d 1216[A] (NY City Civ. Ct., 2010). See, generally Real Property Actions and Proceedings Law (RPAPL) §721 which enumerates the classes of persons who may maintain a summary proceeding.
Although the Respondent does not expressly argue that the Court lacks subject matter jurisdiction, her contention that the Petitioner lacks standing to commence the instant proceedings because she was divested of title to the subject premises via her Chapter 13 Plan prior to the commencement of these proceedings does call into question this Court's subject matter jurisdiction over this matter. See, Terner v. Brighton Foods, Inc., 27 Misc 3d 1225(A) (NY City Civ. Ct., 2010) [].
As an initial matter, City Courts are not statutorily empowered to decide matters involving title to land. See, generally Uniform City Court Act (UCCA) §204.4 However, when the rare question of title is interposed as a defense (See, Respondent's Answer annexed as Exh. "F" to Motion at ¶ 5), the Courts have not been universal in their view as to whether lower courts are divested of jurisdiction. See, Mahshie v. Dooley, 48 Misc 2d 1098, 266 N.Y.S.2d 661 (Sup. Ct. Onondaga County, 1965) [Court held that a party may not interpose title as a defense in a summary proceeding]; Mohar Realty Co. v. Smith, 46 Misc 2d 849, 260 N.Y.S.2d 685 (App. Term, 2d Dept., 1965) []; Muzio v. Rogers, 20 Misc 3d 143[A], 867 N.Y.S.2d 376 (App. Term, 9th & 10th Jud. Dists., 2008) [same]; Paladino v. Sotille, 15 Misc 3d 60, 835 N.Y.S.2d 799 (App. Term, 9th & 10th Jud. Dists., 2007) [same]; Rasch, New York Landlord and Tenant-Summary Proceedings §43:20 (4th ed.) []; Ferber v. Salon Moderne, Inc., 174 Misc 2d 945, 688 N.Y.S.2d 864 (App. Term, 1st Dept., 1997) []; Mason v. Foxcroft Village, 67 AD2d 1012, 1013 (3d. Dept., 1979) (); but see, Terner v. Brighton Foods, Inc., supra, 27 Misc 3d 1225(A) *3 []; see also, Besmanoff v . Allen , 143 Misc 2d 309, 543 N.Y.S.2d 608 (App. Term 9th & 10th Jud. Dists., 1989) [same].
It has been held, however, that the general rule is that a tenant is estopped from denying that the landlord from whom the tenant received possession is the owner of the property. See, Parkway Assocs. v. Berkoff, N.Y.L.J., March 7, 1995, at 29, col 2 (App. Term, 2d Dept.); see also, Rasch, New York Landlord and Tenant-Summary Proceedings §5:8 (4th ed.)["It is well settled that a tenant who has once acknowledged his landlord's title, and taken and held possession under him, and who has not surrendered his lease, nor been evicted from the premises, and who can prove no fraud against the landlord nor transfer of the latter's title after the lease began, is precluded from denying that the landlord, under whom he has so held and claimed, is the owner of the property."]
As almost every general rule has an exception, so does the general rule estopping a tenant from challenging his landlord's title in a summary proceeding. See, Terner v. Brighton Foods, Inc., 27 Misc 3d 1225(A) (NY City Civ. Ct., 2010) [...
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