Park City, LLC v Benami

[*1] Park City, LLC v Benami 2004 NY Slip Op 51266(U) Decided on October 25, 2004 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 25, 2004
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: October 25, 2004 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS PRESENT : ARONIN, J.P., PATTERSON and GOLIA, JJ.
2003-1650 Q C

PARK CITY, LLC, Appellant,

against

EMANUEL BENAMI, RUTH BENAMI, Respondents, -and- LISA PARKER, ISAAC BENAMI, "JOHN DOE"/"JANE DOE", Undertenants-Respondents.

Appeal by landlord from an order of the Civil Court, Queens County (P. Jackman-Brown, J.), entered August 4, 2003, which dismissed the proceeding.

Appeal held in abeyance pending substitution of a duly appointed representative for the deceased party, Emanuel Benami.

Landlord instituted this holdover proceeding on the grounds that the named tenants, Emanuel Benami and Ruth Benami, violated a substantial obligation of the tenancy of the subject rent stabilized apartment by entering into an agreement without
the permission of landlord, wherein they sublet the premises to Lisa Parker and Isaac Benami, and failed to comply with the notice to cure requiring all unauthorized occupants to vacate the premises. The answer alleged that Isaac Benami is the son of Ruth and Emanuel Benami, was an original occupant at the inception of the tenancy and thereby has succession rights to the subject premises, that Lisa Parker is the lawful spouse of Isaac Benami and may reside in the premises without permission of landlord, and that landlord had accepted rent for several years from Isaac Benami and Lisa Parker thereby waiving its objection to said occupancy.

Respondents moved for an order granting summary judgment dismissing the proceeding. During the pendency of the motion, the parties stipulated to amend the caption of the proceeding to substitute as respondent the "Estate of Emanuel Benami" for Emanuel Benami. In its order, [*2]the court noted that the "Estate of Emanuel Benami" was not a proper party and dismissed the petition as to said respondent. The court then proceeded to grant summary judgment to the remaining respondents and dismissed the petition as to them.

The instant proceeding involves a claim of rights and obligations of the deceased party. Since said rights and/or obligations do not abate upon death or survive only to the remaining respondents, substitution of a personal representative is mandated (see
CPLR 1015 [a]). Inasmuch as no personal representative has been appointed and substituted for the decedent, this court is required to hold the appeal in abeyance pending said substitution.
Decision Date: October 25, 2004