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Cadman Towers, Inc v. John Barry

SUPREME COURT OF THE STATE OF NEW YORK


March 18, 2011

CADMAN TOWERS, INC.,
RESPONDENT,
v.
JOHN BARRY, RAYMOND M. WEINSTEIN AS THE ADMINISTRATOR OF THE ESTATE OF
JOHN J. HOLUB, RAYMOND M. WEINSTEIN AND MARSHALL S. WEINSTEIN,
APPELLANTS,
AND "JOHN AND JANE DOE",
UNDERTENANTS.

Appeal from an order of the Civil Court of the City of New York, Kings County (George Heymann, J.), dated January 5, 2010.

Cadman Towers, Inc. v Barry

Appellate Term, Second 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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 18, 2011

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

PRESENT: WESTON, J.P., GOLIA and RIOS, JJ.

The order, insofar as appealed from as limited by the brief, denied the branches of a motion by John Barry, Raymond M. Weinstein as the Administrator of the Estate of John J. Holub, Raymond M. Weinstein and Marshall S. Weinstein seeking to dismiss the petition or, in the alternative, a traverse hearing.

ORDERED that the order, insofar as appealed from, is modified by providing that so much of the motion as was by Raymond M. Weinstein as the Administrator of the Estate of John J. Holub to dismiss the petition as against him is granted; as so modified, the order, insofar as appealed from, is affirmed, without costs.

After obtaining a certificate of eviction from the New York City Department of Housing Preservation and Development (see Matter of Weinstein v City of NY Dept. of Hous. Preserv. & Dev., 39 AD3d 764 [2007]), landlord commenced this holdover proceeding to recover possession of a Mitchell-Lama apartment. John Barry, Raymond M. Weinstein as the Administrator of the Estate of John J. Holub, Raymond M. Weinstein and Marshall S. Weinstein (appellants) moved to dismiss the petition in its entirety on the grounds that the Estate of John J. Holub, one of the tenants, had not been served with the predicate notice and that the respondent identified as John or Jane Doe had not been properly served with process. In the event that their motion was not granted on the papers submitted, appellants requested a traverse hearing. The Civil Court denied appellants' motion.

A valid predicate notice is a condition precedent to a summary holdover proceeding (see Chinatown Apts. v Chu Cho Lam, 51 NY2d 786 [1980]), and it is undisputed that Raymond M. Weinstein as the Administrator of the Estate of John J. Holub was not served with the predicate notice. While Raymond M. Weinstein was served in his individual capacity, this was insufficient to constitute service upon the Estate of John J. Holub. Accordingly, the motion is granted to the extent of dismissing the petition as against the Estate of John J. Holub.

However, under the circumstances presented, it was not necessary to join the Estate of John J. Holub in order to maintain this proceeding to recover possession of the subject Mitchell-Lama apartment (see Ryerson Towers v Estate of Brown, 160 Misc 2d 107 [App Term, 2d & 11th Jud Dists 1994]). Accordingly, the dismissal of the petition against the Estate of John J. Holub does not necessitate the dismissal of the petition against the other appellants.

Appellants' argument that the petition must be dismissed because the party named in the proceeding pursuant to CPLR 1024 was not properly served lacks merit, as the remaining appellants lack standing to assert this defense. In any event, appellants have not provided the court with the identity of a necessary party who has not been served.

To the extent the remaining appellants raise other service issues for the first time on appeal, those issues are not properly before this court (see North Fork Bank v ABC Merchant Servs., Inc., 49 AD3d 701 [2008]).

Accordingly, the order, insofar as appealed from, is modified by providing that so much of the motion as was by Raymond M. Weinstein as the Administrator of the Estate of John J. Holub to dismiss the petition as against him is granted.

Weston, J.P., Golia and Rios, JJ., concur.

Decision Date: March 18, 2011

20110318

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