Loren v. Marry

• Decision Date: 15 July 1993
• Citation: 600 N.Y.S.2d 369,195 A.D.2d 776
• Parties: In the Matter of Dean LOREN, Appellant, v. Diane B. MARRY, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 369

600 N.Y.S.2d 369

195 A.D.2d 776

In the Matter of Dean LOREN, Appellant, v. Diane B. MARRY, Respondent.

Supreme Court, Appellate Division,

Third Department.

July 15, 1993.

Dean Loren, in pro per.

Kingsley, Towne & McLenithan (Michael Rhodes-Devey, of counsel), Albany, for respondent.

Before WEISS, P.J., and LEVINE, CREW, MAHONEY and CASEY, JJ.

CREW, Justice.

Appeals (1) from a judgment of the County Court of Saratoga County (Williams, J.), entered April 10, 1992, which, inter alia, dismissed petitioner's application, in a proceeding pursuant to RPAPL article 7, to recover possession of real property, and (2) from an order of said court, entered December 21, 1992, which, inter alia, denied petitioner's motion to vacate the judgment.

At some point prior to April 11, 1989, Stephen Marry purchased a residence located in Gansevoort, Town of Northumberland, Saratoga County. On April 11, 1989, Marry entered into a 99-year agreement with petitioner, granting petitioner a "lease" in the premises "solely for the life of [his] relationship with [Marry]". The agreement provided that Marry could sell the residence at any time without petitioner's approval and that petitioner's "lease" would terminate at that point. Petitioner's relationship with Marry ended on or about December 1, 1991 and, on December 4, 1991, Marry sold the house to respondent, his mother, for $60,500. Respondent thereafter wrote to petitioner attempting to make arrangements for the return of petitioner's personal effects. Believing that he had a possessory interest in the premises, petitioner attempted to gain entry and was subsequently charged with trespass.

Petitioner, appearing pro se, thereafter commenced this proceeding pursuant to RPAPL article 7 seeking to recover possession of the premises. A nonjury trial followed and, at the close of petitioner's case, respondent moved for a directed verdict. County Court granted the motion and dismissed the petition. Petitioner thereafter submitted proposed amendments to the transcript and, additionally, moved to vacate the judgment entered in respondent's favor on the grounds of fraud and/or misrepresentation. County Court denied both applications, and these appeals by petitioner followed.

We affirm. Initially, we reject petitioner's assertion that the agreement he entered into with Marry constituted a lease. "The test for determining what constitutes a lease * * * [is] whether it is the manifest intent of the parties, gleaned from a consideration of the entire contents of the instrument involved, that exclusive control and possession of specified space for a specified term have been granted, subject to reserved rights" (74 N.Y.Jur.2d, Landlord and Tenant, § 9, at 41-42; see, 1 Rasch, New York Landlord and Tenant §§ 2:1, 4:11, at 104, 180 [3d ed]. Here, although the agreement in question refers to Marry and petitioner as landlord and tenant, respectively, the nomenclature used by the parties is immaterial (see, 1 Rasch, New York Landlord and Tenant § 4:11, at 182 [3d ed]. Additionally, while the payment of rent is evidence of a landlord-tenant relationship (see, 2 Rasch, New York Landlord and Tenant § 38:7, at 597 [3d ed], the rent here was nominal and was not payable until the expiration of the agreement in 2088. In short, based upon our review of the document as a whole, we cannot conclude that the agreement entered into between Marry and petitioner was intended to grant petitioner exclusive possession of the premises. Rather, we are of the view that the...