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221 Middle Neck Owners Corp. v. Paris

District Court of Nassau County, First District

June 1, 2017

221 Middle Neck Owners Corp., Petitioner(s),
v.
Rose Paris, CATALINA PARIS, "JOHN DOE" and/or "JANE DOE", Respondent(s).

          Joan Agostino, Esq., attorney for Petitioner.

          Novick, Edelstein, Lubell, Reisman, Wasserman & Leventhal, P.C., attorneys for Respondents.

          HON. SCOTT FAIRGRIEVE DISTRICT COURT JUDGE.

         The following named papers numbered 1 to 3 submitted on this Motion to Dismiss on April 3, 2017

         papers numbered

         Notice of Motion and Supporting Documents 1

         Order to Show Cause and Supporting Documents

         Opposition to Motion 2

         Reply Papers to Motion 3

         The petitioner commenced this holdover proceeding by the service of a Notice of Petition and Petition to recover possession of the premises described as 221 Middle Neck Road, Apartment D2, Great Neck, NY 11021. The petitioner seeks a judgment of possession and warrant of eviction, along with maintenance arrears of $871.50, plus legal fees, costs and disbursements.

         The respondents, Rose Paris and Catalina Paris, move for an order dismissing the petition, pursuant to CPLR 3211(a)(1), upon documentary evidence, or in the alternative, for a dismissal pursuant to CPLR 3211(a)(7) and RPAPL §741, upon the grounds that the petition fails to state a cause of action. The respondents also seek to extend their time to file an Answer if said motion is denied.

         On or about May 25, 2005, respondent Rose Paris purchased 370 shares of common stock evidencing ownership of the subject premises (see Respondents' Exhibit D). Since the unit in question is a co-operative, the premises is governed by the terms and conditions set forth in the written Proprietary Lease and House Rules (see Respondents' Exhibits B, C). On January 28, 2017, the petitioner served a Five (5) Day Notice to Terminate seeking to extinguish the tenancies of both Rose Paris and her daughter, respondent Catalina Paris. The Termination Notice lists Rose Paris as the Proprietary lessee and Catalina Paris, as Sub-Tenant (Respondents' Exhibit A). The basis for the termination is an alleged violation of Paragraph 15 of the Proprietary Lease. In relying thereon, the petitioner claims that Rose Paris is unlawfully subletting the apartment to her daughter.

         In opposition to the motion, the respondents argue that they have not violated Paragraph 15 of the lease. Rather, the respondents contend that the plain language of the Proprietary Lease allows for immediate family members to reside with a named lessee. In support thereof, respondents have submitted a copy of the Proprietary Lease which bears Rose Paris's signature, and a copy of the House Rules. In addition, the respondents have annexed the affidavits of Rose Paris and Catalina Paris to the motion at bar.

         Rose Paris states that she is the proprietary lessee who purchased the premises in or about 2005. She claims that she has never illegally sublet her apartment to her daughter. Rather, her daughter resides with her and on occasion, her daughter's boyfriend "stays at the apartment". According to the affidavit of Catalina Paris, she has resided with her mother for the past 12 years. She states: "the Landlord has known I have resided in the apartment with my mother. In fact, I have paid, and the landlord has accepted, payments in my name for my mother's maintenance dues for years" ...


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