Opinion
No. SP 001000/10.
2010-09-9
Zenaida MARIANO, Petitioner(s) v. Drew S. KRAUTMAN, Theresa A. Krautman, “JOHN DOE,” and “JANE DOE,” Respondent(s).
Michael C. Manniello, P.C., Westbury, Attorneys for Petitioner. Peter J. Dunn, Esq., Deer Park, Attorney for Respondents.
Michael C. Manniello, P.C., Westbury, Attorneys for Petitioner. Peter J. Dunn, Esq., Deer Park, Attorney for Respondents.
SCOTT FAIRGRIEVE, J.
The petitioner commenced this holdover proceeding in a petition dated February 9, 2010. The petition prays for a final judgment awarding possession of the premises, known as 310 North Baldwin Drive, North Massapequa, New York 11758 (“PREMISES”), to the petitioner.
The respondents first moved to dismiss the petition on the grounds that the Court lacks subject matter jurisdiction herein; that the petition is jurisdictionally defective; and that there exist no grounds for eviction under RPAPL 713 where no landlord-tenant relationship exists. The respondents' motion to dismiss was denied in an order dated July 6, 2010, on the grounds that the Court does indeed have jurisdiction over this proceeding pursuant to RPAPL 713(8).
The respondents, however, have moved for a second time for an order dismissing the petition upon the grounds that the Court lacks subject matter jurisdiction herein, due to a jurisdictionally defective or insufficient notice to quit.
Background History
Respondents, Drew S. Krautman and Theresa A. Krautman, prior owners of PREMISES, originally sought an order allowing them to void an allegedly fraudulent deed of PREMISES to IPE Asset Management, LLC. In a short form order entered November 7, 2007, Hon. Geoffrey J. O'Connell of the Nassau County Supreme Court denied the application for an order setting aside the deed. It was held that the Krautman's had executed and delivered a valid deed, thus transferring PREMISES to IPE Asset Management, LLC. Thereafter IPE deeded PREMISES to Tri State Solutions, Inc. who subsequently deeded PREMISES to petitioner, Zenaida Mariano, on December 15, 2006.
Discussion
The Court concludes that respondents' second motion to dismiss, is denied. Pursuant to CPLR 3211(e), which discusses the permissible number of motions to dismiss, “no more than one such motion shall be permitted.” ( See McLearn v. Cowen & Co., 60 N.Y.2d 686, 455 N.E.2d 1256 [1983].) According to Professor David Siegel, in his discussion of a “single motion rule,” only one CPLR 3211(a) motion is allowed per case to “avoid duplication because the movant can join in the one motion whatever grounds he then has.” (Siegel, New York Practice § 273, at 454 [4th ed].)
This is not a situation where the first motion to dismiss was premature or where the two motions were aimed at different pleadings, thus permitting a second motion. (Siegel, New York Practice § 273, at 454–455 [4th ed].) Instead, this impermissible second motion has not only wasted the time and resources of this Court ( see Ghee v. Washington Mut. Bank, 13 Misc.3d 577, 820 N.Y.S.2d 508 [2006] ), but this motion has also needlessly delayed resolution on the merits. Hampering the effective administration of justice in this way works an unnecessary burden on all involved. ( See Ghee v. Washington Mut. Bank, 13 Misc.3d 577, 820 N.Y.S.2d 508 [2006].)
Conclusion
In view of the foregoing, respondents' motion to dismiss is denied. This case is set down for trial on September 20, 2010 at 9:30 a.m.
So Ordered.