Hok Kwan Chu
v.
Lee

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTSMay 14, 2013
39 Misc. 3d 147 (N.Y. App. Div. 2013)
39 Misc. 3d 147972 N.Y.S.2d 1432013 N.Y. Slip Op. 50859

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No. 2012–837 Q C.

2013-05-14

HOK KWAN CHU, Hok Ming Chu and Raymond Hok Man Chu, Respondents, v. Michelle LEE, Kam Pang Lee, Derek Lee and Theresa Lee, Appellants.


Appeal from a decision of the Civil Court of the City of New York, Queens County (Ulysses Bernard Leverett, J.), dated February 8, 2012, deemed from a final judgment of the same court entered February 9, 2012 (see CPLR 5520 [c] ). The final judgment, after a nonjury trial, awarded petitioners possession in a summary proceeding brought pursuant to RPAPL 713(7).
Present: WESTON, J.P., PESCE and RIOS, JJ.


ORDERED that the final judgment is reversed, without costs, and the petition is dismissed.

In this summary proceeding pursuant to RPAPL 713(7) commenced in October 2011, petitioners alleged in the petition that occupants reside in the subject apartment

as licensees and that petitioners had terminated their license. It is undisputed that occupants entered into exclusive occupancy of the apartment in 1983 with the permission of occupant Michelle Lee's parents, who, together with petitioner Raymond Hok Man Chu, owned the subject property at that time. In 1996, ownership of the property was transferred to petitioners, who are Michelle Lee's brothers. In their answer, occupants alleged, among other things, that they are not licensees and that Michelle Lee has a life estate in the property or, in the alternative, that a constructive trust should be imposed. After a nonjury trial, the Civil Court rejected occupants' defenses, found that occupants are licensees and awarded petitioners a final judgment of possession. We reverse.

Petitioners failed to establish that occupants were mere licensees, as there was no proof at trial that occupants did not have exclusive possession of the apartment ( see Rodriguez v. Greco, 31 Misc.3d 136[A], 2011 N.Y. Slip Op 50696[U] [App Term, 9th & 10th Jud Dists 2011]; Vitarelle v. Vitarelle, 21 Misc.3d 130[A], 2008 N.Y. Slip Op 52045[U] [App Term, 9th & 10th Jud Dists 2008]; Sherhan v. Numyal Food, Inc., 20 Misc.3d 40 [App Term, 2d & 11th Jud Dists 2008] ). Under these circumstances, occupants were, at the very least, tenants at will or tenants at sufferance, and were entitled to a 30–day notice (Real Property Law § 228; see Rodriguez v. Greco, 31 Misc.3d 136[A], 2011 N.Y. Slip Op 50696[U]; UHAB HDFC v. Diaz, 10 Misc.3d 130[A], 2005 N.Y. Slip Op 51957[U] [App Term, 1st Dept 2005]; City of New York v. Utsey, 185 Misc.2d 715 [App Term, 2d & 11th Jud Dists 2000] ). Since petitioners failed to serve such a notice, the final judgment is reversed and the petition is dismissed.

In view of the foregoing, we reach no other issue.

WESTON, J.P., PESCE and RIOS, JJ., concur.