Fed. Nat'l Mortg. Ass'n
v.
Simmons

Not overruled or negatively treated on appealinfoCoverage
Supreme Court, Appellate Term, First Department, New York.Apr 29, 2015
12 N.Y.S.3d 487 (N.Y. App. Div. 2015)
12 N.Y.S.3d 48748 Misc. 3d 242015 N.Y. Slip Op. 25138

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2015-04-29

FEDERAL NATIONAL MORTGAGE ASSOCIATION, Petitioner–Appellant, v. Kisshia SIMMONS, John Doe/Jane Doe, Respondents–Respondents.

Fein, Such & Crane, LLP, Syracuse (John A. Cirando of counsel), for appellant. Adam Leitman Bailey, P.C., New York City (Jeffrey R. Metz of counsel), for Kisshia Simmons, respondent.



Fein, Such & Crane, LLP, Syracuse (John A. Cirando of counsel), for appellant. Adam Leitman Bailey, P.C., New York City (Jeffrey R. Metz of counsel), for Kisshia Simmons, respondent.
PRESENT: LOWE, P.J., SHULMAN, HUNTER, JR., JJ.

PER CURIAM.


Final judgment (Cheryl J. Gonzales, J.), entered on or about June 7, 2013, affirmed, with $25 costs.

This holdover proceeding seeks to recover possession of a cooperative apartment occupied by respondent Kisshia Simmons. Respondent initially entered possession of the premises as a tenant pursuant to a 2005 proprietary lease agreement. Respondent subsequently defaulted on a loan secured by the shares and proprietary lease allocated to her apartment, and the shares and lease were then sold at a UCC article 9 nonjudicial sale. Petitioner is the purported assignee of the successful bidder at the sale. Petitioner then commenced this holdover proceeding, upon a ten-day notice to quit, alleging that respondent's license to occupy the premises has expired.

We sustain the dismissal after trial of the holdover petition. A licensee holdover proceeding pursuant to RPAPL 713(7) does not lie in the circumstances here present, since respondent “entered into possession of the apartment premises as a tenant pursuant to a proprietary lease agreement” (Retained Realty Inc. v. Zwicker, 46 Misc.3d 133[A], 2014 N.Y. Slip Op. 51852[U], 2014 WL 7391748 [App.Term, 1st Dept.2014]; City Enters., Ltd. v. Posemsky, 184 Misc.2d 287, 708 N.Y.S.2d 230 [2000] ). “If that lease has been terminated ... [respondent] is in possession as a holdover tenant. [S]he is not in occupancy pursuant to a license” ( Federal Home Loan Mortge. Asssn v. Perez, 40 Misc.3d 1, 3, 968 N.Y.S.2d 317 [2013] ). Indeed, so far as shown on this record, the nonparty cooperative neither terminated respondent's lease nor issued a new lease naming petitioner as the “tenant-shareholder.” To the extent that the cooperative refuses to do so, petitioner's remedy is in another forum at another time ( see generally LI Equity Network, LLC v. Village in the Woods Owners Corp., 79 A.D.3d 26, 910 N.Y.S.2d 97 [2010] ).

Petitioner also misplaces reliance upon RPAPL 713(1), which permits a purchaser to commence a summary proceeding to remove an occupant where the “property has been sold by virtue of an execution against him ... and a title under the sale has been perfected” (RPAPL 713[1] ). The notice to quit did not give adequate notice of such claim, even when we apply the liberal standard of “reasonableness” ( see Metropolitan Transp. Auth. v. Kura Riv. Mgt., 292 A.D.2d 230, 739 N.Y.S.2d 668 [2002]; Spinale v. 10 W. 66th St. Corp., 210 A.D.2d 85, 622 N.Y.S.2d 1 [1994] ). In any event, RPAPL 713(1) finds no application here because the property sold, viz., the shares and proprietary lease, were “personal property” ( see Matter of State Tax Commn. v. Shor, 43 N.Y.2d 151, 400 N.Y.S.2d 805, 371 N.E.2d 523 [1977]; Silverman v. Alcoa Plaza Assoc., 37 A.D.2d 166, 172, 323 N.Y.S.2d 39 [1971] ), not “real property” (RPAPL 701[1] ). “The sale of the shares and the lease is not a sale of the real property' ... [t]hus, RPAPL 713(1) ... provides no basis for the maintenance of this proceeding” ( Federal Home Loan Mtge. Assn. v. Perez, 40 Misc.3d at 3–4, 968 N.Y.S.2d 317).

Petitioner similarly misplaces reliance upon UCC article 9 as a basis to maintain this proceeding. “As the right to maintain summary proceedings did not exist at common law and is solely a creation of the statute, it applies only in those cases authorized by the statute” ( Dulberg v. Ebenhart, 68 A.D.2d 323, 328, 417 N.Y.S.2d 71 [1979] ). In the absence of any specific authority under RPAPL article 713 (proceeding where no landlord-tenant relationship exists), the proceeding may not be maintained.