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287 Realty Corp., Appellant, Konstantinos Livathinos, "John Doe" and "Jane Doe", Occupants, -And v. Spyridon Livathinos and S & L Industrial Services

New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS


February 25, 2013

287 REALTY CORP., APPELLANT, KONSTANTINOS LIVATHINOS, "JOHN DOE" AND "JANE DOE", OCCUPANTS, -AND-
v.
SPYRIDON LIVATHINOS AND S & L INDUSTRIAL SERVICES, INC. DOING BUSINESS AS S & L INDUSTRIAL IRON WORK, RESPONDENTS.

Appeal from an order of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered February 2, 2010.

287 Realty Corp. v Livathinos

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This opinion is uncorrected and will not be published in the printed Official Reports.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 February 25, 2013

PRESENT: PESCE, P.J., RIOS and SOLOMON, JJ

The order granted a motion by occupants Spyridon Livathinos and S & L Industrial Services, Inc. Doing Business as S & L Industrial Iron Work to consolidate this summary proceeding with another and to dismiss the petition insofar as asserted against them.

ORDERED that the appeal from so much of the order as granted the branch of the motion by occupants Spyridon Livathinos and S & L Industrial Services, Inc. Doing Business as S & L Industrial Iron Work seeking to consolidate this summary proceeding with another is dismissed as moot; and it is further,

ORDERED that the order, insofar as reviewed, is affirmed, with $25 costs.

The petition in this summary proceeding alleges that occupants are licensees in a premises consisting of 3,600 square feet on the north side, ground floor and mezzanine, at 287 Bond St., Brooklyn. The petition provides no information as to how occupants came to be in possession as "licensees." Spyridon Livathinos and S & L Industrial Services, Inc. Doing Business as S & L Industrial Iron Work (occupants) moved to consolidate this summary proceeding with another summary proceeding that petitioner had commenced against them to recover possession of a different space and to dismiss the petition insofar as asserted against them on various grounds, including that there was a prior Supreme Court litigation pending between the parties and failure to state a cause of action. A reading of the papers submitted in support of and in opposition to occupants' motion makes it clear that there had been a business relationship between occupant Spyridon Livathinos and Roberta Vaughan, a principal of petitioner; that the relationship had been memorialized in a document which purports to make Spyridon Livathinos a 50% owner of petitioner; and that the validity of this document and of the existence of the partnership relationship is the subject of contest in the pending Supreme Court litigation. The Civil Court granted occupants' motion to consolidate the two proceedings and dismissed the petition based on the pendency of the Supreme Court action "involving [a] related contract dispute."

Dismissal on the ground of prior proceeding pending is not appropriate where substantially the same relief is not being sought in the two proceedings (Goldman v A & E Club Props., LLC, 89 AD3d 681 [2011]; Wharry v Lindenhurst Union Free School Dist., 65 AD3d 1035 [2009]). As the relief sought in this summary proceeding -- the recovery of possession -- is not the same as the relief being sought in the Supreme Court action, dismissal on the ground of prior action pending was not appropriate.

However, the petition should have been dismissed on the ground that it fails to set forth the facts upon which the proceeding is based (RPAPL 741 [4]). A respondent in a summary proceeding is entitled to a concise statement of the ultimate facts upon which the proceeding is based (e.g. Giannini v Stuart, 6 AD2d 418 [1958]; Cintron v Pandis, 34 Misc 3d 152[A], 2012 NY Slip Op 50309[U] [App Term, 9th & 10th Jud Dists 2012]). "With respect to the contents of the petition, adequacy of notice in a landlord-tenant proceeding is governed by a standard of reasonableness under the circumstances" (546 W. 156th St. HDFC v Smalls, 43 AD3d 7, 11 [2007]; see Ropshitz v Schwartz, 31 Misc 3d 135[A], 2011 NY Slip Op 50635[U] [App Term, 9th & 10th Jud Dists 2011]).

In the case at bar, the petition merely tracks the statute (RPAPL 713 [7]) by reciting, in conclusory fashion, that occupants are "licensees." Notwithstanding the extensive history of dealings between the parties, the petition provides no information as to how occupants, one of whom, Spyridon Livathinos, was apparently a party to a partnership agreement with Vaughan, which partnership agreement states that he is a 50% owner of petitioner, are to be deemed "licensees." Nor did petitioner move to amend the petition. As the notice provided by the petition to occupants and to the court was not reasonable under the attendant circumstances (RPAPL 741 [4]; see Jeffco Mgt. Corp. v Local Dev. Corp. of Crown Hgts., 22 Misc 3d 141[A], 2009 NY Slip Op 50455[U] [App Term, 2d, 11th & 13th Jud Dists 2009]), the petition should have been dismissed on this basis.

In view of the dismissal of the petition, the issue of the propriety of consolidating the summary proceedings is moot. Consequently, the appeal from so much of the order as consolidated the summary proceedings is dismissed.

Accordingly, the order, insofar as reviewed, is affirmed.

Pesce, P.J., Rios and Solomon, JJ., concur. Decision Date: February 25, 2013

20130225

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