Agostino, Esq., attorney for Petitioner.
Novick, Edelstein, Lubell, Reisman, Wasserman &
Leventhal, P.C., attorneys for Respondents.
SCOTT FAIRGRIEVE DISTRICT COURT JUDGE.
following named papers numbered 1 to 3 submitted on this
Motion to Dismiss on April 3, 2017
of Motion and Supporting Documents 1
to Show Cause and Supporting Documents
to Motion 2
Papers to Motion 3
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.
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.
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.
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.
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"