Gardens Nursery School v. Columbia University in City of New York

• Decision Date: 04 May 1978
• Citation: 94 Misc.2d 376,404 N.Y.S.2d 833
• Parties: GARDENS NURSERY SCHOOL, a domestic corporation formed under the Laws of the State of New York, Petitioner-Lessee, v. COLUMBIA UNIVERSITY IN the CITY OF NEW YORK, Respondent-Lessor.
• Court: New York City Court

Page 833

404 N.Y.S.2d 833

94 Misc.2d 376

GARDENS NURSERY SCHOOL, a domestic corporation formed under the Laws of the State of New York, Petitioner-Lessee, v. COLUMBIA UNIVERSITY IN the CITY OF NEW YORK, Respondent-Lessor.

Civil Court of the City of New York,Special Trial Term, Part 52.

May 4, 1978.

James N. Finney, New York City and Bruce E. Tolbert, Tarrytown, for petitioner-lessee.

Byron Golden, New York City, for respondent-lessor.

BURTON S. SHERMAN, Judge.

The respondent, a landlord, moves to dismiss for lack of subject matter jurisdiction this summary proceeding brought by an alleged lessee.

The petitioner seeks possession of a premises by virtue of an oral lease. It admits that it has never been in possession of the premises, but claims that an oral lease was negotiated and all the terms and conditions were agreed upon. Petitioner relies upon Sections 204 and 212 of the CCA and Section 721(11) of the Real Property Actions and Proceedings Law (RPAPL) as authority for maintaining this proceeding. Section 204 CCA confers jurisdiction upon the Civil Court of summary proceedings to recover possession of real property. Section 212 CCA confers upon the Civil Court the same jurisdiction as the Supreme Court "in like actions and proceedings". Section 721(11) RPAPL states that a summary proceeding may be brought by "the lessee of the premises, entitled to possession". Petitioner argues that by virtue of its oral lease, it is a lessee entitled to possession and may, therefore, maintain this proceeding. Relying on Section 212 CCA it seeks specific performance of the oral lease. While the language of Section 721(11) RPAPL is susceptible to petitions interpretation, the legislative history indicates that it was never intended that it be used as an alternative for an action for specific performance.

Summary proceeding statutes were originally enacted to provide a more expeditious method for the removal of occupants from real property, than the common law law action in ejectment (Section 711 RPAPL Lex.-56th Corp. v. Morgan, 24 Misc.2d 48, 203 N.Y.S.2d 59, appeal denied 13 A.D.2d 912, 217 N.Y.S.2d 1020, cf. Michaels v. Fishel, 169 N.Y. 381, 62 N.E. 425). While primarily concerned with disputes between landlords and tenants their scope through the years was expanded as their use became more successful (Section 721 RPAPL, McKinney's Practice Commentary by Paul R. Shaw, Article 7 RPAPL p. 101). Thus in 1952 Section 1414 Civil Practice Act was amended to add subdivision 9 to permit a new lessee of an entire premises for at least ten years to maintain a holdover proceeding against a tenant occupant (Laws 1952, chapter 351). This was incorporated in the RPAPL as Section 721(11). Subdivision 11 was later amended in 1963 (L.1963 chapter 305) to permit any lessee entitled to possession to bring a summary proceeding "where a new lessee entitled to possession and the tenant holds over without permission of the new lessee", (1963 Legislative Doc. 65 H,...