Stier v. President Hotel, Inc.
| Decision Date | 28 June 1967 |
| Parties | Lawrence STIER, as Receiver, Respondent, v. PRESIDENT HOTEL, INC., et al., Appellants. |
| Court | New York Supreme Court — Appellate Division |
J. Stanley Shaw, New York City, for appellants.
Levine & Levine, Liberty, for respondent. (Lazarus I. Levine, Liberty, of counsel).
Before GIBSON, P.J., and HERLIHY, AULISI, STALEY and GABRIELLI, JJ.
Appeal from an order of the County Court of Sullivan County, entered on January 18, 1967, which affirmed a judgment and warrant of eviction of the Justice Court of the Town of Liberty made on the 22nd day of July, 1966 in favor of the Petitioner-respondent.
On or about the 11th day of May, 1966, the Sullivan County National Bank of Liberty, as mortgagee, commenced a foreclosure action naming the respondents-appellants as parties defendant. The President Hotel, Inc. was the owner in fee of the premises covered by the mortgage, and Don Mar Operating Co., Inc. was the lessee of the premises under a lease dated April 15, 1966, and terminating on October 15, 1966.
On or about the 14th day of June, 1966, the petitioner-respondent was appointed receiver in the mortgage foreclosure action by order of the Supreme Court, Sullivan County. On June 15, 1966, the receiver wrote a letter to the President Hotel, Inc. enclosing a copy of the order appointing him receiver in the foreclosure action, wherein he demanded immediate possession of the real and personal property of the President Hotel, Inc.
On June 27, 1966, the receiver instituted summary proceedings in the Justice Court to recover possession of the premises, naming the appellants as respondents. The petition in the summary proceeding alleged, among other things, that the facts on which the proceeding was based were the foreclosure action; the order appointing the receiver; that the petitioner had demanded possession of the premises and had not received possession and had not received rents. It was further alleged that the appellants continued in possession of the premises without his permission.
A most liberal construction of the petition indicates that the proceeding was brought to recover possession of the premises by reason of a default in the payment of rent, pursuant to section 711, subd. 2 of the Real Property Actions and Proceedings Law which provides that a special proceeding may be maintained to recover possession of premises where 'The tenant has defaulted in the payment of rent, pursuant to the agreement under which the premises are held, and a demand of the rent has been made, or at least three days' notice in writing requiring, in the alternative, the payment of the rent, or the possession of the premises, has been served upon him as prescribed in section 735.'
The petition fails to allege a default in the payment of rent, or a demand for payment of rent, or the giving of the required notice to the tenant. It is, therefore, insufficient upon its face. The appellants, however, made no motion directed to the petition on these grounds. Assuming arguendo that these apparently jurisdictional defects could be waived by proceeding to trial without objection, the record discloses, in the opening statement of the counsel for ...
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