Opinion
April 8, 1985
Appeal from the Supreme Court, Kings County (Jordan, J.).
Order affirmed, without costs or disbursements.
The plaintiff landlords, Leroy and Isaline Alleyne, are the owners of a two-family dwelling located at 1538 President Street, Borough of Brooklyn, City of New York. The defendant, Fannie Townsley, rented the second-floor apartment on a monthly basis in July 1983. In or about September 1983 the Alleynes served Townsley with a 30-day notice terminating her tenancy as of October 31, 1983. Ms. Townsley failed to vacate the premises, and a holdover proceeding was instituted in Civil Court. Townsley raised as a defense that the premises were occupied by three families in violation of the certificate of occupancy. As a result, the Civil Court proceeding was thereafter withdrawn and the instant action for ejectment instituted. The Alleynes successfully moved for summary judgment and Townsley has appealed. We affirm.
Although resort to a summary proceeding to regain possession of real property has become the rule rather than the exception (RPAPL art 7; 2 Warren's Weed, N.Y. Real Property, Ejectment, § 1.01), the common-law action for ejectment still survives in New York and is more properly referred to as an action to recover possession of real property (RPAPL art 6). The commonlaw principles governing the ejectment action are unchanged, unless explicitly modified by statute. No statute abrogates the common-law rule that notice is unnecessary to maintain an ejectment action against a tenant who wrongfully holds over after expiration of a fixed and definite term ( see, 13 Carmody-Wait 2d, N.Y. Prac § 89:118). While the 30-day notice served on the defendant in September 1983 was intended by the landlords to comply with the requirements of Real Property Law § 232-a, being a condition precedent to maintaining summary eviction proceedings under RPAPL article 7, we agree with Special Term that this notice served equally well to convert the defendant's tenancy into one for a fixed and definite term. Indeed, the tenant concedes in her brief on appeal that "the notice terminated [her] tenancy as of October 31, 1983". We need not pass upon the soundness of the rule announced in Haberman v. Wager ( 73 Misc.2d 732) and its progeny, which holds that a 30-day notice is required by Real Property Law § 232-a for each summary proceeding, because, in any event, those cases are inapposite since the instant action seeks the common-law remedy of ejectment and is not a statutory summary eviction proceeding. Gibbons, J.P., Weinstein, Brown and Niehoff, JJ., concur.