Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Linden Lefferts, LLC v. Myrna Cox and Gregory Cox

March 14, 2011

LINDEN LEFFERTS, LLC,
RESPONDENT,
v.
MYRNA COX AND GREGORY COX,
TENANTS,
-AND- JENNA SAVEUR,
UNDERTENANT.
JEAN FERDINAND,
NONPARTY-APPELLANT.



Appeal from an order of the Civil Court of the City of New York, Kings County (Inez Hoyos, J.), dated August 21, 2009. The order denied occupant Jean Ferdinand's motion for an order (1) vacating the final judgment and warrant and restoring the proceeding to the calendar, (2) granting him leave to appear and answer, and (3) in effect, finding that an illusory tenancy existed and that he was the legal tenant.

Linden Lefferts, LLC v Cox

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Miscellaneous Reports.

Decided on March 14, 2011

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

PRESENT: GOLIA, J.P., PESCE and STEINHARDT, JJ

ORDERED that the order is modified by providing that the branches of occupant Jean Ferdinand's motion seeking to vacate the warrant and to restore the matter to the calendar, and for leave to appear and answer, are granted, and the answer is to be served and filed within 14 days of the date of the order entered hereon, and the branch of the motion seeking an order, in effect, finding that an illusory tenancy existed and that occupant Jean Ferdinand was the legal tenant is denied as premature; as so modified, the order is affirmed, without costs.

Landlord commenced this residential holdover proceeding against Myrna Cox and Gregory Cox, the tenants of record of the subject rent-stabilized apartment, and against undertenants Jenna Saveur and "John/Jane Doe." On August 18, 2008, Myrna Cox, Gregory Cox and Jenna Saveur entered into a so-ordered stipulation with landlord which provided that the tenants of record surrendered their interest and that Jenna Saveur would vacate the apartment by August 28, 2008, with an extension to October 31, 2008 upon payment of use and occupancy. The stipulation also provided that the proceeding, insofar as it was against John Doe, was discontinued. A final judgment was entered pursuant to the stipulation, and a warrant issued. Thereafter, Jean Ferdinand (occupant) sought an order vacating the final judgment and warrant and restoring the proceeding to the calendar, granting him leave to appear and answer, and, in effect, finding that an illusory tenancy existed and that he was the legal tenant. Occupant asserted, among other things, that he had resided in the apartment as his primary residence since 2003 and that both landlord and landlord's predecessors had accepted rent from him with knowledge of his occupancy. In opposition to the motion, landlord failed to submit an affidavit on personal knowledge disputing these assertions. The Civil Court denied occupant's motion.

Pursuant to RPAPL 743, "any person in possession or claiming possession of the premises" may answer in a summary proceeding (see Cobert Constr. Corp. v Bassett, 109 Misc 2d 119 [App Term, 1st Dept 1981]). As occupant is allegedly in possession and, at the very least, is claiming possession, the branch of occupant's motion seeking leave to intervene and answer should have been granted (see Decaudin v Velazquez, 15 Misc 3d 45 [App Term, 9th & 10th Jud Dists 2007]). We note that occupant raised a triable issue of fact as to whether he is entitled to tenancy rights on the ground that there has been an affirmative recognition by landlord and/or its predecessors of his tenancy (see Johny v Tolbert, 8 Misc 3d 130[A], 2005 NY Slip Op 51043[U] [App Term, 2d & 11th Jud Dists 2005]).

Because occupant has the right to appear and answer and has not been afforded an opportunity to do so, the branch of his motion seeking to vacate the warrant should have been granted. However, since the final judgment was not entered against occupant or John Doe, the branch of occupant's motion seeking to vacate the final judgment was properly denied. To the extent that occupant sought an order, in effect, finding that an illusory tenancy existed and that he was the legal tenant, occupant's application is premature at this time. However, that claim may be raised in occupant's answer.

Accordingly, the order is modified by providing that the branches of occupant's motion seeking to vacate the warrant and to restore the matter to the calendar, and for leave to appear and answer, are granted, and the answer is to be served and filed within 14 days of the date of the order entered hereon, and the branch of the motion seeking an order, in effect, finding that an illusory tenancy existed and that he was the legal tenant is denied as premature, and the order is otherwise affirmed.

Pesce and Steinhardt, JJ., concur.

Golia, J.P., dissents in part and concurs in part in a ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.