June 17, 2013
50 RIVERSIDE TENANTS CORP., Petitioner-Landlord-Appellant,
Patricia Garza MORALES, as Distributee of Edgar H. Garza Morales, Deceased, Respondent-Tenant, and Michael R. Cower, Respondent-Occupant-Respondent, and
This decision has been referenced in a table in the New York Supplement.
Petitioner-landlord appeals from an order of the Civil Court of the City of New York, New York County (Sabrina B. Kraus, J.), entered December 21, 2012, which denied its motion for a default judgment of possession against respondent Patricia Garza Morales and for summary judgment of possession against respondent Michael R. Cower, and, upon searching the record, granted summary judgment to respondents dismissing the petition in a nonpayment summary proceeding.
Present: LOWE, III, P.J., SHULMAN, HUNTER, JR., JJ.
Order (Sabrina R. Kraus, J.), entered December 21, 2012, reversed, with $10 costs, petition reinstated, and landlord's motion for a default judgment of possession against respondent Morales and summary judgment of possession against respondent Cower is granted. Execution of the warrant of eviction shall be stayed for 30 days from service of a copy of this order with notice of entry.
This nonpayment summary proceeding was properly maintainable against the deceased tenant's sister (respondent Garza), qua distributee, in view of the undisputed record showing that rent is due under the tenant's extant lease; that the petition was served more than three months after the tenant's death; that no administrator or executor was appointed for tenant's estate and no legal representative of the estate occupies the apartment; and that tenant was not survived by a spouse or issue ( see RPAPL 711; Poulakas v. Ortiz, 25 Misc.3d 717  ). In this posture, and there being no question regarding the sufficiency or service of the petition, entry of the default judgment sought by petitioner was required by RPAPL 732(3)( see Matter of Brusco v. Braun, 84 N.Y.2d 674, 681  ).
Summary judgment of possession was warranted as against respondent-occupant Cower, in view of his failure to assert any colorable defenses available to him in response to petitioner's rent claim.