Kassover v. Gordon Family Associates, Inc.

• Decision Date: 15 July 1983
• Citation: 120 Misc.2d 196,465 N.Y.S.2d 668
• Parties: Philip J. KASSOVER, Petitioner, v. GORDON FAMILY ASSOCIATES, INC., Respondent.
• Court: New York City Court

Page 668

465 N.Y.S.2d 668

120 Misc.2d 196

Philip J. KASSOVER, Petitioner, v. GORDON FAMILY ASSOCIATES, INC., Respondent.

Civil Court of the City of New York Kings County.

July 15, 1983.

Weiss, Rifkind, Wharton & Garrison, New York City, for petitioner.

Snow, Becker, Kroll, Klaris & Krauss, New York City, for respondent.

HERBERT KRAMER, Judge.

May a squatter proceeding be used to evict a lessee whose possession is pursuant to a long term lease which has not been executed by all of the tenants in common?

The commercial premises in question is owned by Lawrence Kassover, et al., owners, a tenancy in common. A lease was entered into by the tenant, Gordon Family Associates, Inc., hereinafter "GFA", and all but one of the tenants in common. The non-signatory, petitioner herein, Philip Kassover, purportedly consented to the appointment of an agent, who signed on his behalf.

The long-term lease given to the tenant, GFA, called for a rental grace period. This was in recognition of the major renovations necessary to restore the premises to meaningful use. Upon completion of renovations to the badly fire-gutted premises, at a cost in excess of $25,000, petitioner, non-consenting tenant in common, seeks to remove respondent GFA as a squatter. RPAPL § 713(3).

Petitioner, Philip Kassover, contends that a lease is void in its inception absent unanimity of the tenants in common. The petitioner further contends that entry pursuant to a void lease may be terminated by the instant squatter proceeding.

Contrary to the position espoused, a lease of an entire parcel by less than all the tenants in common creates an interest in the lessee akin to a tenancy in common during its term. Mott v. Underwood, 73 Hun. 509, 26 N.Y.S. 307 (Sup.Ct.1893); Johnston v. Johnston, 131 Misc. 323, 227 N.Y.S. 526 (Sup.Ct. Delaware 1928); see 13 N.Y.Jur. § 54, 49 A.L.R.2d 819. Thus the lessee and the non-consenting owner become tenants in common.

The general rule allows each co-tenant the non-exclusive use of the entire premises and permits either an action for ejectment, or pursuant to RPAPL 713(3) after an ouster. The relief is limited to the return to non-exclusive possession. Mott v. Underwood, supra; Church & Society of North Grieg v. Johnson, 66 Barb. 119; Finnegan v. Humes, 252 App.Div. 385, 289 N.Y.S. 501, aff'd 277 N.Y. 682, 14 N.E.2d 389 (Ct. of Appeals 1938); Gilman v. Gilman, 111 N.Y. 265, 18 N.E. 849 (Ct. of Appeals 1888); Pugliese v. Saburro, 276 App.Div. 794, 92 N.Y.S.2d 707 (3rd Dep't 1949); Panzica v. Cimino, 21 Misc.2d 1076, 192 N.Y.S.2d 989 (Westchester Co.Ct.1959).

Exceptions to the general rule are:

1. Lease of less than all of the property, Schwartz v. Serino, 116 N.Y.S.2d 882 (Mun.Ct. Queens 1952); Early v. Robinson, 128 Misc. 184, 218 N.Y.S. 55 (App. Term 1st Dep't 1926); see also Tainter v. Cole, 120 Mass. 162; Bartlet v. Harlow, 12 Mass. 348; cf. Palmer v. Palmer, 150 N.Y. 139, 44 N.E. 966. The rationale for distinguishing a lease of the whole parcel from a lease of a portion thereof is the increased potential difficulty upon partition.

2. Lease of a premises incapable of non-exclusive use, Hall v. Boyd, 347 Ill.App. 60, 106 N.E.2d 137; cf. Schwartz v. Serino, supra and Early v. Robinson, supra; Pugliese v. Saburro, supra.

The majority of cases where a tenancy in common is not established by the conveyance, holds the tenancy as one at will, or for a term. 49 A.L.R.2d 797 et seq. Sochoshinski, American Law of Landlord & Tenant, § 2.17 Rasch 2d N.Y. Landlord & Tenant § 47. Contrary to the parties' position, the lease in question may not be void but merely voidable, at the option of the non-consentor, Tainter v. Cole, supra; 49 A.L.R.2d § 97 at 14.

Moreover, the tenant, while in possession under such lease, cannot dispute his landlord's title despite the fact that the lease, on its face, may show lack of title in the landlord. Tilyou v. Reynolds, 108 N.Y. 558, 15 N.E. 534; 1 Rasch 2d, New York Landlord and Tenant, § 91. Thus, the lease is in effect and continues until disaffirmed by the true landlord, thereby creating a voidable, not void, lease. However, it is only the void lease, without permissive occupancy ripening into a tenancy at will that allows eviction under Section 713(3). Carman v. Fox, supra; Mahoney v. Hoffman, supra; Fisher v. Queens Park Realty Corp., supra.

This Court thus holds that the lease is at best voidable, that the tenant entered with permission, that structural repairs were made and accepted in lieu of the grace period rent; each of which requires proceeding under RPAPL § 711.

Finally, entry under a void lease does not necessarily allow eviction under RPAPL 713(3), even assuming that the lease does not create the right of a co-tenancy nor a tenancy at will. The Court's analysis indicates that two diverse or antagonistic lines of cases do not exist, contrary to the views of the parties. In fact, all cited cases in the area are harmonious.

A proceeding under RPAPL § 713(3) is maintainable after an entry or intrusion upon land without right or claim of right and which has neither ripened into a tenancy at will, for a term, nor is an unrevoked license. The touchstone is a non-permissive entry followed by the absence of any acts, primarily on the part of the owner, such as the acceptance of rent, which would ripen the possession into any form of tenancy. Alternatively, a void entry may not allow the use of a squatter proceeding where there has been permission or license without subsequent revocation thereof. Williams v. Alt, 226 N.Y. 283, 123 N.E. 499 (1919); Kaplan v. Volk, 273 A.D. 215 (3rd Dep't.1948); Mahoney v. Hoffman, 58 Misc. 217, 109 N.Y.S. 13 (Sup.Ct.App.Term 1908); Fisher v. Queens Park Realty Corp., 41 A.D.2d 547, 339 N.Y.S.2d 642 (2d Dep't.1973); Century Paramount Hotel v. Rockland Corp., 68 Misc.2d 603, 327 N.Y.S.2d 695 (Civ.Ct.N.Y.Co.1971); MacArthur v. Walter, Sup., 182 N.Y.S. 690 (1st Dep't 1920); The Statement v. Pilgrims Landing, Inc., 49 A.D.2d 28, 370 N.Y.S.2d 970 (4th Dep't 1975); Robbins v. DeLee, 34 A.D.2d 870, 310 N.Y.S.2d 804 (3rd Dep't.1970); Kaufman v. Zash, 7 A.D.2d 927, 183 N.Y.S.2d 704 (2nd Dep't.) aff'd. 7 N.Y.2d 831, 196 N.Y.S.2d 706, 164 N.E.2d 724 (1959); Rosefan Constr. Corp. v. Salazar, 114 Misc.2d 956, 452 N.Y.S.2d 1016 (Civ.Ct. Queens Co.1982); Murawski v. Melkun, 71 Misc.2d 575, 336 N.Y.S.2d 845 (Civ.Ct. Queens Co.1972); Carman v. Fox, 86 Misc. 197, 149 N.Y.S. 213 (Nassau Co.Ct.1914); Stier v. The President Hotel, 28 A.D.2d 795, 281 N.Y.S.2d 140; Altschuler v. Lipschitz, 113 N.Y.S. 1058 (App.Term 1909).

Stated differently RPAPL 713(3) may be utilized:

1. for removal of a tenant whose entry into possession is simply without claim of right, Mahoney v. Hoffman, supra; Kaplan v. Volk, supra;

2. to restore a tenant in common to an undivided right of possession subsequent to an ouster, cf. RPAPL 633; Church & Society of North Grieg v. Johnson, supra; Panzica v. Cimino, supra.

3. to obtain unrestricted possession from a lessee, not a "tenant," of premises capable only of exclusive use. Hall v. Boyd, supra; Schwartz v. Serino, supra.

However, where the original entry is with permission, the appropriate vehicle for removal is RPAPL §...