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Allyn v. Markowitz

County Court, Rockland County
Sep 22, 1975
83 Misc. 2d 250 (N.Y. Cnty. Ct. 1975)

Opinion

September 22, 1975

Dubbs, Leopold Davis, P.C. (Charles G. Davis of counsel), for petitioner.

Laurence H. Pearson for respondent.


The narrow question before the court is whether a petition in a summary proceeding pursuant to article 7 of the Real Property Actions and Proceedings Law may be amended to include a claim for damages to the real property. There does not appear to be any direct authority on the point.

The subject matter of a special proceeding under article 7 of the Real Property Actions and Proceedings Law is a dispute over the right of possession of real property. (Real Property Actions and Proceedings Law, § 701; Cotignola v Lieber, 34 A.D.2d 700.) The purpose of the article is to provide for simple, expeditious, and inexpensive adjudications of disputes between landlords and tenants over rights of possession. (Cotignola v Lieber, supra; 5 Warren's Weed, New York Law of Real Property [4th ed], Summary Proceedings, § 1.03.) Though a special proceeding under article 7 of the Real Property Actions and Proceedings Law may include a cause of action for unpaid rent, such summary proceeding is nonetheless in rem and purely possessory. (Rasch, New York Landlord and Tenant [2d ed], § 995; 5 Warren's Weed, New York Law of Real Property [4th ed], Summary Proceedings, § 1.03.) Therefore, any other cause of action between a landlord and a tenant may not be made part of the petition.

The petitioner contends that CPLR 3025 is applicable to a special proceeding of article 7 of the Real Property Actions and Proceedings Law. The petitioner argues that, in reference to a procedure as to which article 7 of the Real Property Actions and Proceedings Law is silent, the court must refer to CPLR article 4, and in reference to a procedure as to which article 4 is silent, to the whole of the CPLR.

The petitioner's argument fails because it is impossible to fill the interstice between article 7 of the Real Property Actions and Proceedings Law and CPLR article 4. The purpose of CPLR article 4 is to provide a uniform procedure for special proceedings other than those for which a different procedure is prescribed by statute. (1 Weinstein-Korn-Miller, N Y Civ Prac, par 401.01.) Article 7 of the Real Property Actions and Proceedings Law prescribes its own procedure, and its procedures, unlike those of the CPLR (see CPLR 104), are to be construed strictly. (Cotignola v Lieber, 34 A.D.2d 700, supra.) More importantly, the question before the court is not one of procedure, but of jurisdiction. In a special proceeding pursuant to article 7 of the Real Property Actions and Proceedings Law, a court has no jurisdiction to adjudicate a monetary claim other than rent allegedly due. (Rasch, New York Landlord and Tenant [2d ed], § 995, and cases cited at n 1.)

Accordingly, the motion to amend the petition is denied.


Summaries of

Allyn v. Markowitz

County Court, Rockland County
Sep 22, 1975
83 Misc. 2d 250 (N.Y. Cnty. Ct. 1975)
Case details for

Allyn v. Markowitz

Case Details

Full title:CAROLE ALLYN, as Agent for SYLVIA STERN, Doing Business as CONGERS REALTY…

Court:County Court, Rockland County

Date published: Sep 22, 1975

Citations

83 Misc. 2d 250 (N.Y. Cnty. Ct. 1975)
373 N.Y.S.2d 293

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