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Matthews v. Marcus Garvey Brownstone Houses, Inc.

Other Lower Courts

June 5, 2001

In the Matter of Yolanda Matthews et al., Petitioners,
v.
Marcus Garvey Brownstone Houses, Inc., et al., Respondents.

COUNSEL

Gutman, Mintz, Baker & Sonnenfeldt, P. C., New Hyde Park (Kenneth Mintz and Steven J. Masef of counsel), for Marcus Garvey Brownstone Houses, Inc., respondent.

Brooklyn Legal Services Corp. A (Martin S. Needelman, Paul J. Acinapura, Richard Wagner and Jim Provost of counsel), for petitioners.

OPINION

Marcia Sikowitz, J.

Petitioner tenants commenced this Housing Part (HP) proceeding in December 2000 seeking a final judgment appointing

Page 504

a RPAPL article 7-A administrator pursuant to RPAPL 778.R espondent interposed a verified answer and the case appeared on the HP calendar on January 10, 2001 at which time the proceeding was adjourned on consent to February 13 to get the results of the Department of Housing Preservation and Development (DHPD) inspection of the subject apartments. Respondent moved by amended notice of motion, dated April 23, 2001, for an order either dismissing the petition or for discovery. Respondent seeks dismissal of the petition on several grounds including, inter alia: pursuant to CPLR 3211 (a) (2) as the petition was brought by less than the one third of the tenants residing in the premises contrary to RPAPL 770 (1); [1] pursuant to CPLR 3211 (a) (10) for failure to serve an indispensable party (Dubor Associates); failure to serve notice of the proceeding on the nonpetitioning tenants pursuant to RPAPL 771 (6); and failure to serve the registered managing agent.

Petitioners served a notice of cross motion seeking an order striking various defenses and affirmative defenses contained in respondent's answer, and an affirmation in opposition to respondent's motion to dismiss the proceeding. Respondent submitted an affirmation in opposition to petitioners' cross motion and in further support of respondent's motion to dismiss, and petitioners submitted an affirmation in reply and sur reply.

Issue:

Did petitioners fail to serve the nonpetitioning tenants pursuant to RPAPL 771 (6)?

Facts:

The instant proceeding seeking appointment of a 7-A administrator for a housing project known collectively as " Marcus Garvey Village" and named in the caption as " Marcus Garvey Brownstone Houses, Inc." is brought by 223 tenants who reside in seven different buildings. The seven different buildings have different street addresses, separate property registration forms filed with DHPD, and different block and lot numbers. [2]

The affirmation of service on the nonpetitioning tenants, by petitioners' counsel, affirms that ...


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