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Pakee Fang v. Amanda K. Dasilva

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS


April 5, 2011

PAKEE FANG,
APPELLANT,
v.
AMANDA K. DASILVA,
RESPONDENT,
-AND-
ABUBAKER YAHYA ALSO KNOWN AS ABO BAKER A YAHIA,
JACOB JOHNSON, MAGDALENE J. DASILVA YAHIA, NINA DASILVA,
JOHN DOE AND JANE DOE,
RESPONDENTS.

Appeal from a final judgment of the Civil Court of the City of New York, Queens County (Deighton S. Waithe, J.), entered January 8, 2010.

Fang v Dasilva

Decided on April 5, 2011

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This opinion is uncorrected and will not be published in the printed Official Reports.

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

The final judgment, after a non-jury trial, dismissed the petition in a holdover summary proceeding.

ORDERED that the final judgment is modified by providing that the petition is dismissed only as against Magdalene J. DaSilva Yahia and by remitting the matter to the Civil Court for the entry of a final judgment awarding landlord possession as against all the remaining respondents, plus any and all arrears in rent and/or use and occupancy, following a trial, to determine the amounts owed and by whom; as so modified, the final judgment is affirmed, without costs.

At the non-jury trial in this holdover proceeding, tenant Amanda DaSilva testified that her mother, Magdalene J. DaSilva Yahia, had died prior to the time substituted service had purportedly been made upon her. The Civil Court dismissed the petition, stating that, under the circumstances, landlord was required to wait three months before commencing the proceeding.

A landlord seeking to recover unpaid rent from a deceased tenant may, after three months, commence a nonpayment proceeding "by joining the surviving spouse or . . . one of the surviving issue or . . . any one of the distributees," if "no representative or person has taken possession of the premises and no administrator or executor has been appointed" (RPAPL 711 [2]). There is no requirement that a landlord wait three months before commencing a holdover proceeding where a tenant or undertenant is deceased.

Since the testimony showed that Magdalene J. DaSilva Yahia was deceased at the time substituted service was allegedly effected upon her, the Civil Court does not have jurisdiction over her or her estate. This is not fatal to the proceeding, to the extent landlord seeks possession of the subject property, because neither Magdalene J. DaSilva Yahia nor her estate is a necessary party to the summary proceeding, since the lease had expired and Magdalene J. DaSilva Yahia had no rights that survived her death.

Accordingly, the final judgment is modified by providing that the petition is dismissed only insofar as it is against Magdalene J. DaSilva Yahia, and, inasmuch as it was not disputed at trial that the lease term had expired, the matter is remitted to the Civil Court for the entry of a final judgment awarding landlord possession as against all the remaining respondents, plus any and all arrears in rent and/or use and occupancy, following a trial, to determine the amounts owed and by whom.

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

Decision Date: April 05, 2011

20110405

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