Jacobs v. Andolina

• Decision Date: 27 October 1986
• Citation: 507 N.Y.S.2d 450,123 A.D.2d 835
• Parties: Allan Stanley JACOBS, Plaintiff, v. Philip ANDOLINA, et al., Defendants. Douglas R. Holt, Receiver-Respondent; Kent Pruzan, et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 450

507 N.Y.S.2d 450

123 A.D.2d 835

Allan Stanley JACOBS, Plaintiff, v. Philip ANDOLINA, et al., Defendants Douglas R. Holt, Receiver-Respondent Kent Pruzan, et al., Appellants.

Supreme Court, Appellate Division Second Department.

Oct. 27, 1986.

Rothschild, Esposito, Himmelfarb, Sher & Pearl, White Plains (Alan H. Rothschild and Karen Weiss Hirsch, of counsel), for appellants.

Burchetta, Goldsand & Cerussi, P.C., Carmel (Richard I. Goldsand, of counsel), for receiver-respondent.

Before BROWN, J.P., and RUBIN, LAWRENCE and KOOPER, JJ.

MEMORANDUM BY THE COURT.

In a mortgage foreclosure action, Kent Pruzan and Paula Pruzan appeal from a judgment of the Supreme Court, Westchester County (Beisheim, J.), entered March 12, 1984, which awarded the receiver Douglas R. Holt the principal sum of $4,165, plus interest, for the Pruzans's use and occupancy of the mortgaged premises from June 1, 1983, to February 1, 1984.

ORDERED that the judgment is reversed, on the law, and the matter is remitted to the Supreme Court, Westchester County, to compute an award for use and occupancy of the premises for the period from September 7, 1983, until February 1, 1984, less the necessary expenses incurred in maintaining the premises, in accordance with this memorandum.

In or about January of 1983 the defendant Beverly Andolina contracted to sell her residence to the appellants Kent and Paula Pruzan. Because a title report disclosed a pending foreclosure action and an unsatisfied judgment against the Andolinas, the closing date was adjourned to try to obtain releases and to clear title. The contract of sale was amended in the spring of 1983 to allow the Pruzans to take possession in the interim. The amendment provided that an obligation to pay $500 per month rent would arise if and only if title closed. In July 1983 the Pruzans received a notice to attorn, addressed to the tenant of the premises, from a receiver who had been appointed with respect to a second mortgage on the property.

Efforts to clear title were unsuccessful and on September 7, 1983, a foreclosure sale was held. The Pruzans made the highest bid and tendered the requisite down payment, which was accepted by the referee conducting the sale. However, prior to the conveyance of a referee's deed, Allan Jacobs, the holder of the second and third mortgages, obtained a stay of the conveyance pending a determination of his motion to set aside the sale for improper service on himself. The Pruzans continued to occupy the premises. Thereafter, Jacobs' motion was granted and the sale was vacated by judicial decree, the Pruzans' money was returned and a new sale was scheduled. The Pruzans decided not to bid again at the second sale and vacated the premises on or about February 1, 1984.

The receiver appointed to collect rents and profits on the mortgaged premises on behalf of Jacobs made the instant application for an order directing the Pruzans to pay $500 per month for their use and occupancy of the mortgaged premises from June 1, 1983, to February 1, 1984. Special Term granted the motion and the Pruzans appeal from the judgment subsequently entered on that order.

When the Pruzans commenced occupancy of the residence in the spring of 1983, they did so as vendees in possession. It is well settled that the legal owner of real property is not entitled to an award for use and occupancy from a contract vendee in possession unless there also exists a landlord-tenant relationship between the parties (see, 14 Second Ave. Realty Corp. v. Steven Corp., 16 A.D.2d 751, 227 N.Y.S.2d 278, affd. 12 N.Y.2d 919, 238 N.Y.S.2d 99, 188 N.E.2d 404; Barbarita v. Shilling, 111 A.D.2d 200, 489 N.Y.S.2d 86; Pinmor Realty Corp. v. Baris Hotel Corp., 83 A.D.2d 847, 441 N.Y.S.2d 751; Stevens v. Nye, 283 App.Div. 666, 127 N.Y.S.2d 4) or the situation falls within the ambit of RPAPL 713 (9) (cf. Orange County Development Corp. v. Perez, 67 Misc.2d 980, 325 N.Y.S.2d 608; Sid Farber Hempstead Corp. v. Buckley, 65 Misc.2d 237, 317 N.Y.S.2d 30). Since the contract of sale was not one which was necessarily to be performed within 90 days and the vendee in possession did not default in the performance of the terms of said contract, RPAPL 713(9), by its own terms, is inapplicable.

Although, ordinarily, the relationship of lessor and lessee is not created between the vendor and the vendee by the mere fact the vendee is given the right to take possession of the premises prior to the conveyance of title, an intention to deviate from this general rule may be directly expressed in the contract or may be inferred from a medley of factors, including the terms of the agreement, the circumstances of its making and the subsequent behavior of the parties (Barbarita v. Shilling, supra; 2 Rasch, New York Landlord & Tenant § 690 [2d ed] ). Here, the parties explicitly and unambiguously agreed to amend the contract of sale to provide that an obligation to pay rent should arise only if title closed, which condition never occurred. Consequently, the Pruzans did not have to pay rent while they were contract vendees in possession. Said status, however, terminated on ...