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167 West 80th Street, LLC v. Anthony Wayne Yoder

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT


December 3, 2010

167 WEST 80TH STREET, LLC,
PETITIONER-
v.
ANTHONY WAYNE YODER, AS THE ESTATE OF LINDA YODER, ANTHONY WAYNE YODER, "JOHN DOE" AND "JANE DOE,"
RESPONDENTS-RESPONDENTS.

Per curiam.

167 W. 80th St., LLC v Yoder

Appellate Term, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 3, 2010

PRESENT: Shulman, J.P., McKeon, Schoenfeld, JJ

Petitioner appeals from an order of the Civil Court of the City of New York, New York County (Michelle D. Schreiber, J.), entered August 11, 2010, which denied its cross motion for summary judgment and granted the motion of respondent Anthony Wayne Yoder, as voluntary administrator of the Estate of Linda Yoder, for summary judgment dismissing the petition insofar as against him in a holdover summary proceeding.

Order (Michelle D. Schreiber, J.), entered August 11, 2010, modified to deny the motion for summary judgment by respondent Anthony Wayne Yoder, as voluntary administrator of the Estate of Linda Yoder, the petition reinstated against this respondent and the matter remanded for further proceedings; as modified, order affirmed, without costs.

Decedent Linda Yoder was the tenant of record of a rent stabilized apartment. Respondent Anthony Wayne Yoder (Yoder) is the decedent's son and the voluntary administrator of his mother's estate. Petitioner-landlord commenced this holdover summary proceeding against Yoder in both his representative and individual capacities; the petition alleges that the voluntary administrator violated a substantial obligation of the tenancy by occupying the apartment in his individual capacity. Yoder filed two distinct answers to the proceeding -- one in his representative capacity and one in his individual capacity. His individual answer contained a counterclaim asserting succession rights, claiming that he primarily resided with his mother in the apartment for the two-year period immediately preceding her death. Yoder, in his capacity as voluntary administrator, moved for summary judgment dismissing the petition as against him in his representative capacity, invoking affirmative defenses raised in the administrator's answer. Petitioner cross-moved for summary judgment on the petition. Civil Court granted the motion and denied the cross motion.

Yoder's motion for summary judgment dismissing the petition as against him in his representative capacity should have been denied. Although a representative of a deceased tenant's estate has the right to possession of the demised premises in his capacity as representative until the expiration of the lease, when the representative places himself or herself individually in possession without landlord's consent, the representative violates a substantial obligation of the tenancy (see Joint Props. Owners Inc. v Deri, 113 AD2d 691 [1986]; Remford Corp. v Rosenfeld, 274 App Div 769 [1948]). Here, although it is not seriously disputed that Yoder is occupying the apartment at issue in his individual capacity, his succession claim is extant. Thus, at this juncture, a triable issue exists as to whether Yoder's occupancy was pursuant to his right as successor to his mother's tenancy, which right, though inchoate until ratified by judicial determination (see 245 Realty Assoc. v Sussis, 243 AD2d 29 [1998]), would "relate back to the date creating his statutory rights, the death of the tenant of record" (id. at 33).

We note, too, that Civil Court properly declined to review the merits of Yoder's succession claim on petitioner's cross motion for summary judgment. In his motion, Yoder sought summary judgment dismissing the petition as against him in his representative capacity only; he did not seek any relief in his individual capacity. Therefore, petitioner could not seek relief by way of cross motion against Yoder in his individual capacity (see CPLR 2215; Mango v Long Is. Jewish-Hillside Med. Ctr., 123 AD2d 843 [1986]). Moreover, the cross motion did not give adequate notice that petitioner was challenging the succession claim on the merits (cf. Sheehan v Marshall, 9 AD3d 403 [2004]). Our disposition is without prejudice to a proper motion by petitioner for summary judgment against Yoder in his individual capacity.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Decision Date: December 03, 2010

20101203

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