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Lincoln Mercury Holding Co., LLC v. Magee

Supreme Court of New York, Second Department

January 27, 2014

Lincoln Mercury Holding Co., LLC by PATRICK MAGEE, MANAGER, Appellant,
v.
John F. Magee and JOHN F. MAGEE Doing Business as HISTORIC CAR SALES, Respondent.

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

Appeal from an order of the Justice Court of the Town of Orangetown, Rockland County (Patrick J. Loftus, J.), entered July 30, 2012. The order granted tenant's motion to dismiss the petition.

ORDERED that the order is affirmed, without costs.

Patrick Magee, Jr., one of two managers of petitioner, a limited liability company (LLC), caused two 30-day notices to be served, purporting to terminate month-to-month tenancies in separate parts of a building owned by the LLC. Subsequently, petitioner's other manager, Jonathan Magee (tenant's son), caused a revocation of the 30-day notices to be served. Nevertheless, Patrick Magee, Jr. thereafter caused petitioner to commence this holdover summary proceeding. The Justice Court granted tenant's motion to dismiss the petition, finding, among other things, that Patrick Magee, Jr. did not have the authority to commence the proceeding. We affirm the order dismissing the petition, albeit on a somewhat different ground. Pursuant to petitioner's operating agreement, both Patrick Magee, Jr. and Jonathan Magee, as the LLC's managers, have actual authority to act. Consequently, the 30-day notices were effectively revoked. A holdover proceeding cannot be maintained under these circumstances (RPAPL 711 [1]).

We incidentally note that petitioner's service of separate notices of termination indicates that the properties sought to be recovered are separately possessed. Separately possessed properties cannot be recovered in a single summary proceeding

(see e.g. First Cent. Sav. Bank v Yglesia, 37 Misc.3d 130[A], 2012 NY Slip Op 51969[U] [App Term, 9th & 10th Jud Dists 2012]).

Tolbert, J.P., Nicolai and Iannacci, JJ., concur.


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