Muzio v Rogers

[*1] Muzio v Rogers 2008 NY Slip Op 51763(U) [20 Misc 3d 143(A)] Decided on August 19, 2008 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 19, 2008
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., McCABE and SCHEINKMAN, JJ
2007-549 N C.

John Muzio and Theresa Muzio, Appellants,

against

Joseph Rogers and Irene Rogers, Respondents.

Appeal from a decision of the District Court of Nassau County, First District (Scott Fairgrieve, J.), dated August 1, 2005, deemed an appeal from a final judgment of the same court entered June 9, 2008 (see CPLR 5520 [c]). The final judgment, after a nonjury trial, dismissed the petition in a nonpayment summary proceeding (8 Misc 3d 1022[A], 2005 NY Slip Op 51228[U]).

Final judgment affirmed without costs.

Petitioners commenced this nonpayment summary proceeding in June 2005, claiming to be the owners of the premises in question. After a nonjury trial, the court below found that petitioners had been divested of title to the property in question as of May 5, 2004. Accordingly, the court dismissed the petition. We affirm.

Contrary to petitioners' argument, it was not error for the court below to consider tenants' defense that petitioners no longer owned the property in question at the time they commenced this summary proceeding (see Cohen v Carpenter, 128 App Div 862 [1908]). Although title cannot be determined as an affirmative claim in the context of a summary proceeding, a question of title can properly be raised as a defense to the proceeding, as it was here (RPAPL 743; UDCA 905; Nissequogue Boat Club v State of New York, 14 AD3d 542 [2005]; Paladino v Sotille, 15 Misc 3d 60 [App Term, 9th & 10th Jud Dists 2007]; Decaudin v Velazquez, 15 Misc 3d 45 [App Term, 9th & 10th Jud Dists 2007]; Chopra v Prusik, 9 Misc 3d 42 [App Term, 2d & 11th Jud Dists 2005]; Mohar Realty Co. v Smith, 46 Misc 2d 849 [App Term, 9th & 10th Jud Dists [*2]1965]). At trial, recorded deeds were introduced which showed that the property in question was transferred to Florence Risman, based upon a tax sale for unpaid 2000/2001 taxes, by deed executed May 5, 2004. Although the original May 5, 2004 deed misidentified the lot number of the property in question, two subsequent correction deeds established that the transferred property included lots 7 through 10. Petitioners acknowledge that the premises at issue in this nonpayment proceeding is located on lots 9 and 10. Petitioners' claims challenging the validity of the deeds or the tax sale cannot be litigated in this summary proceeding.

After the conveyance of the property to Florence Risman, petitioners were no longer the "landlord[s] or lessor[s]" (RPAPL 721 [1]; see Boyd v Auchterlonie, 17 Misc 728 [1896]), and they thus lacked standing to maintain this proceeding. Consequently, the court below properly dismissed the proceeding (see e.g. Durand v Simmons, 16 Misc 3d 133[A], 2007 NY Slip Op 51497[U] [App Term, 9th & 10th Jud Dists 2007]; Ryan v P.S. and More, Inc., NYLJ, June 29, 1999 [App Term, 9th & 10th Jud Dists]; 626 Realty Co. v Gumbs, NYLJ, Feb. 27, 1992 [App Term, 2d & 11th Jud Dists]).

Accordingly, we affirm the final judgment dismissing the petition. We note that our determination is without prejudice to any remedy petitioners may have to challenge the deeds in an appropriate forum.

Rudolph, P.J., McCabe and Scheinkman, JJ., concur.
Decision Date: August 19, 2008