Fed. Nat'l Mortg. Ass'n v. Tenenbaum

• Decision Date: 10 January 2019
• Docket Number: LT-005247-18NA
• Citation: 63 Misc.3d 313,92 N.Y.S.3d 574
• Parties: FEDERAL NATIONAL MORTGAGE ASSOCIATION, Petitioner(s) v. David TENENBAUM, Craig Tenenbaum, Philip Tenenbaum, "John Doe," "Jane Doe," Respondent(s).
• Court: New York District Court

63 Misc.3d 313

92 N.Y.S.3d 574

FEDERAL NATIONAL MORTGAGE ASSOCIATION, Petitioner(s)

v.David TENENBAUM, Craig Tenenbaum, Philip Tenenbaum, "John Doe," "Jane Doe," Respondent(s).

LT-005247-18NA

District Court, City of New York, New York, Nassau County, First District.

Decided January 10, 2019

David A. Gallo & Associates, attorneys for Petitioner, 99 Powerhouse Road - First Floor, Roslyn Heights, New York 11577, (516) 583-5330; Nassau/Suffolk Law Services Committee, attorneys for Respondent David Tenenbaum, One Helen Keller Way, 5th Floor, Hempstead, New York 11550, (516) 292-8100; Craig Tenenbaum, Respondent, 39 Anchor Street, Apt. 39K, Freeport, NY; Philip Tenenbaum, Respondent, 39 Anchor Street, Apt. 39K, Freeport, NY; John Doe, Respondent, 39 Anchor Street, Apt. 39K, Freeport, NY, Jane Doe, Respondent, 39 Anchor Street, Apt. 39K, Freeport, NY.

Scott Fairgrieve, J.Petitioner, Federal National Mortgage Association (hereinafter referred to as Federal), brings this holdover proceeding to evict David Tenenbaum, Craig Tenenbaum, Philip Tenenbaum, John Doe and Jane Doe. This premises is located at 39 Anchor Street, Apt. 39K, Freeport, New York, which is a cooperative apartment (hereinafter referred to as "the Premises"). Anchors Edge Owners Corp. (hereinafter referred to as Anchors), owns the premises at 39 Anchor Street, Freeport, New York.

The holdover Petition, dated September 10, 2018, alleges that Respondents' lease was terminated on September 6, 2016, pursuant to RPAPL § 711(1). Petitioner refers to Exhibit "A" making it the owner of the premises. Exhibit "A" is a stock certificate issued by Anchors to Federal for 225 shares and the Proprietary Lease for Apartment 39K.

Paragraphs 5 and 9 of the Petition allege that a 10 day notice to quit was served upon Respondents.

"5. The term for which the said premises were occupied by the respondent tenant expired on September 6, 2018. See Ten Day Notice to Quit and supporting documents annexed hereto and made a part hereof.

9. On or about August 21, 2018, at least 10 days before the bringing of this petition, respondents were served in the manner provided by law with a notice in writing, a copy of which with proof of service is annexed hereto and made a part of this petition, that the Petitioner is now the owner of the premises, that Respondents rights were terminated and that Respondents must remove themselves from said premises within 10 days, and surrender possession thereof to the petitioner."

The Certificate of Sale and Fact is attached to the Petition as Exhibit "G". This Certificate states that JP Morgan Chase Bank, National Association became the owner of the 225 shares and Proprietary Lease for the Premises for the sum of $275,464.06 on December 10, 2013 as the result of a public auction. The sale was done in "accordance with the Terms of Sale which were available to all bidders."

The Ten Day Notice to Quit states that Petitioner received ownership of the stock and lease concerning the Premises pursuant to an Assignment of Bid, dated January 7, 2014 which resulted from a sale conducted in accordance with Article 9 of the UCC. The Ten Day Notice states in part:

"Pursuant to said sale, your proprietary lease and shares of stock appurtenant to the premises have been cancelled. You are therefore occupying the premises as a holdover occupant.

FEDERAL NATIONAL MORTGAGE ASSOCIATION , as owner of the property demands that you and all others occupying the Premises quit same and surrender possession thereof to the undersigned:

Within ten (10) days after service on you of this Notice

If you shall fail to surrender possession as aforestated, a Summary Dispossess Holdover proceeding shall be instituted against you for possession of the Premises described above."

Petitioner provides the Assignment of Bid, dated January 7, 2014, which establishes that JP Morgan Chase assigned its rights, title, and interest in the foreclosure sale, held on December 10, 2013, to Petitioner.

Respondent, David Tenenbaum, moves by the motion dated September 23, 2018, for an order to dismiss this summary proceeding on the following grounds set forth in the Affirmation of attorney Daniel A. Okrent, dated September 23, 2018, on the following grounds:

"4. There was a previous holdover proceeding involving the same parties and the same issues in this very court. The case number is LT 2532-14. That case was dismissed for lack of subject matter jurisdiction. Now the petitioner is bringing the same action again.

5. In his decision in the 2014 case (copy attached), Judge Bjorneby concluded that the case is not within the subject matter jurisdiction of this court and that, even if it was, the petitioner lacks standing to bring an eviction proceeding against this respondent.

He also concluded that there is no landlord/tenant relationship between the parties. More specifically, he stated that the court is ‘without jurisdiction to allow a third-party security holder to commence a summary proceeding to evict a cooperative tenant pursuant to a non-judicial foreclosure.’ ‘Moreover’, he continued, ‘the sale of the shares in the cooperative and the lease of a cooperative corporation is not a sale of ‘real property’ ...’ In dismissing the case, Judge Bjorneby ruled that ‘the secured lender can not maintain a summary proceeding’.

6. In summary, this controversy is Res Judicata in this court. This proceeding must therefore be dismissed."

Petitioner submits the Affirmation in Opposition to Cross Motion and for Judgment of Possession, dated October 17, 2018. Petitioner posits that Judge Bjorneby's decision was correct because at that time the stock and proprietary lease were not yet transferred to Petitioner. It is contended that the situation has been corrected by Anchors transferring the stock and lease to Petitioner. Thus, Petitioner argues that it has standing to bring this proceeding pursuant to RPAPL § 711(1) which states:

"1. The tenant continues in possession of any portion of the premises after the expiration of his term, without the permission of the landlord or, in a case where a new lessee is entitled to possession, without the permission of the new lessee. Acceptance of rent after commencement of the special proceeding upon this ground shall not terminate such proceeding nor effect any award of possession to the landlord or to the new lessee, as the case may be. A proceeding seeking to recover possession of real property by reason of the termination of the term fixed in the lease pursuant to a provision contained therein giving the landlord the right to terminate the time fixed for occupancy under such agreement if he deem the tenant objectionable, shall not be maintainable unless the landlord shall by competent evidence establish to the satisfaction of the court that the tenant is objectionable."

Petitioner further argues that Respondents' lease was terminated in a UCC Article 9 foreclosure and therefore Respondents are holdover tenants in accordance with the rationale of Federal Home Loan Mortgage Association v. Perez , 40 Misc. 3d 1, 968 N.Y.S.2d 317 (2013).

Respondent submits the attorney Reply Affirmation, dated October 28, 2018. Respondent argues that this proceeding cannot be maintained under the RPAPL because the stock and lease in the cooperative are personal and not real property. Counsel urges that the subsequent transfer of the 225 shares of stock and proprietary lease does not change the rationale of Judge Bjorneby's decision.

Respondent further contends that since Respondents never received any notice from Anchors or from Fannie Mae, and there was no proceeding which terminated his lease, the lease is still in effect and RPAPL § 711(1) is inapplicable.

Petitioner submits the Sur-Reply Affirmation in Opposition to Respondent's Motion and in Support of Cross Motion for Judgment and Warrant dated, November 5, 2018. Petitioner states that no notice was served upon Respondent to commence a proceeding pursuant to RPAPL § 711(1) because none is required. Petitioner asserts that Respondent is a holdover tenant and that Respondent was never a tenant of Petitioner. However, since Respondent is a holdover tenant, Petitioner may maintain a summary proceeding pursuant to RPAPL § 711(1).

A review of the relevant portions of the proprietary lease between Anchors (lessor) and the petitioner is necessary to determine the parties' rights and interests. The sections are as follows:

"ARTICLE 9. ASSIGNMENT OF LESSOR'S RIGHTS AGAINST OCCUPANT

If at the date of the commencement of this lease, any third party shall be in possession or have the right to possession of the Apartment, then the Lessor hereby assigns to the Lessee Lessor's interest, as landlord or owner, in the lease pursuant to which such third party is in, or has the right to, possession, any security deposited thereunder, and all of the Lessor's rights against said third party from and after the date of the commencement of the term hereof including, but not limited to, Lessor's right to continue or institute any summary or other evictions proceedings, and the Lessee by the execution hereof assumes all of the Lessor's obligations to said third party from said date. The Lessor agrees to cooperate with the Lessee, but at the Lessee's expense, in the enforcement of the Lessee's rights against said third party."

The above clause appears to transfer Anchors right to commence summary proceedings to the Petitioner against any third party (Respondent) who is in possession of the apartment.

The following clause provides for a transfer of the shares and lease to an individual designated by the Secured Party (Petitioner) provided the terms and conditions of this subdivision are complied with.

"ARTICLE 18. PLEDGE OF SHARES AND LEASE

(b) Secured Party

(iii) If the purchase by the Lessee of the shares allocated to the Apartment was financed by a loan made by a bank, savings bank, savings and loan association or the Sponsor, or any person or entity provided by the Sponsor, or any holder of Unsold

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