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Gorbrook Associates, Inc. and Norman Fishman, Derivatively On Behalf of Gorbrook Associates, Inc., Appellants v. Ilene Silverstein

New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS


December 7, 2012

GORBROOK ASSOCIATES, INC. AND NORMAN FISHMAN, DERIVATIVELY ON BEHALF OF GORBROOK ASSOCIATES, INC., APPELLANTS, --
v.
ILENE SILVERSTEIN, RESPONDENT, -AND- JOHN DOE AND JANE DOE, OCCUPANTS.

Appeal from an order of the District Court of Nassau County, First District (Scott Fairgrieve, J.), dated February 3, 2011.

Gorbrook Assoc., Inc. v Silverstein

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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 7, 2012

PRESENT: NICOLAI, P.J., IANNACCI and LaSALLE, JJ

The order granted occupant Ilene Silverstein's motion to dismiss the petition. The appeal from the order dated February 3, 2011 brings up for review so much of an order of the same court dated June 17, 2011 as, upon renewal and reargument, adhered to the prior determination (see CPLR 5517 [b]).

ORDERED that the appeal from the February 3, 2011 order is dismissed, as that order was superseded by the order dated June 17, 2011; and it is further,

ORDERED that the order dated June 17, 2011, insofar as reviewed, is reversed, without costs, upon reargument, the order dated February 3, 2011 is vacated, and the matter is remitted to the District Court for a new determination of occupant Ilene Silverstein's motion to dismiss the petition.

Petitioners, Gorbrook Associates, Inc. (Gorbrook) and Norman Fishman, derivatively on behalf of Gorbrook, commenced this proceeding to recover possession of residential property pursuant to RPAPL 711 (1), alleging that Ilene Silverstein (occupant) had, "at most, a tenancy at will or by sufferance." Occupant, alleging that she is a contract vendee and not a tenant, moved to dismiss the petition on the grounds that a summary proceeding cannot be commenced derivatively and that Gorbrook's directors did not authorize the commencement of this proceeding. By order dated February 3, 2011, the District Court dismissed the petition on the ground that occupant is a contract vendee, and that a summary proceeding did not lie pursuant to RPAPL 713 (9) because the contract of sale was not one that was necessarily to be performed within 90 days. The court did not address the grounds asserted in occupant's motion.

The District Court granted petitioners' subsequent motion for leave to renew and reargue their opposition to occupant's motion to dismiss. Upon renewal and reargument, the court adhered to its prior decision, rejecting petitioners' claim that a tenancy at will had been created, and stating, again, that the facts of the case demonstrate that the parties did not intend to close title within 90 days of the execution of the contract.

Petitioners' appeal from the order dated February 3, 2011 brings up for review the order dated June 17, 2011 (see CPLR 5517 [b]). The appeal from the order dated February 3, 2011 must be dismissed, as that order was superseded by the order dated June 17, 2011. The parties limit their arguments on appeal to the issue of whether the petition was properly dismissed on the ground that it could not have been properly commenced pursuant to RPAPL 713 (9).

It cannot be determined, on this motion to dismiss, whether the contract of sale was one that was necessarily "to be completed within ninety days after its execution" (RPAPL 713 [9]; see Jacobs v Andolina, 123 AD2d 835, 836 [1986]). The contract states that it was made as of January 18, 2009, and that the contemplated closing date was not until June of that year. However, occupant and Fishman agree that the contract was not executed on January 18, 2009. One allegation is that the contract was executed in April 2009, in which case it could be held that the contract did, of necessity, have to be performed within 90 days. Accordingly, it was improper for the court to find, as a matter of law, that the contract was not one that was necessarily to be performed within 90 days as required by RPAPL 713 (9). Thus, even assuming that the District Court properly determined that occupant is a contract vendee, an issue which we do not reach, it was improper, upon this record, for the court to dismiss the petition on the ground that it was improperly commenced pursuant to RPAPL 713 (9).

In light of the foregoing, the order dated June 17, 2011, insofar as reviewed, is reversed, upon reargument, the order dated February 3, 2011 is vacated, and the matter is remitted to the District Court for a new determination of occupant's motion to dismiss the petition on the ground that a summary proceeding cannot be commenced derivatively and/or that Gorbrook's directors did not authorize the instant proceeding.

Nicolai, P.J., Iannacci and LaSalle, JJ., concur. Decision Date: December 07, 2012

20121207

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