Fame Co. v Sandberg
Annotate this CaseDecided on September 6, 2005
Civil Court, New York County
Fame Company, Petitioner,
against
Trygve Sandberg, Respondent, JOHN CHESHIRE, "JOHN DOE AND/OR JANE DOE," Respondents-Undertenants.
70468/2005
Joseph E. Capella, J.
The instant illegal sublet holdover proceeding was first noticed to be heard on May 25, 2005. The respondent-undertenant, John Cheshire, ("undertenant") appeared and by verified answer and counterclaim dated May 23, 2005, asserts, inter alia, improper service of the predicate notices and pleadings, illusory tenancy, and estoppel. According to the undertenant, he has resided at the subject premises since 1993, which is when the tenant of record, Trygve Sandberg, first assumed the lease, and the petitioner has always known of his occupancy. The undertenant also alleges that Mr. Sandberg has not occupied the subject premises since 1995. According to the petitioner, however, it was led to believe that Mr. Sandberg was contemporaneously occupying the subject premises with the undertenant. The petitioner also states that the last renewal lease dated July 9, 2003, was signed by Mr. Sandberg, and it has a written statement from the respondents in which they represent that they are "living in the apartment together and the [undertenant] was paying rent for the tenant and acceptance of checks from the [undertenant] did not create a landlord-tenant relationship with him."
By notice of motion dated June 14, 2005, the petitioner seeks discovery, and by notice of motion dated June 14, 2004, the undertenant seeks dismissal, (CPLR § 3211(a)), and discovery. The court will first address the undertenant's ninth affirmative defense, which challenges jurisdiction pursuant to section 733(1) of the Real Property Actions and Proceedings Law ("RPAPL"). According to the undertenant, the affidavit of service ("AOS"), which indicates conspicuous place service of the notice of petition and petition, was filed with the court on May 23, 2005. As this is less than the five days required under RPAPL § 733(1), (see also RPAPL § 735(2)(b)), the undertenant seeks dismissal based upon same. The court stamp on the AOS indicates that on May 23, 2005, at 1:27 p.m., a post card was "mailed by the court clerk." It is not clear that this stamp also serves as the date the AOS was filed with the court. According to the process server's affidavit, dated June 22, 2005, in opposition to the undertenant's motion, the [*2]AOS was filed on May 20, 2005. Given this clear discrepancy, the court issued an order dated July 12, 2005, which set this matter down for a hearing on August 11, 2005, to determine when the AOS was actually filed with the court. The July 12, 2005-order did not address whether the alleged short filing could be cured nunc pro tunc pursuant to section 411 of the New York City Civil Court Act ("CCA") because the petitioner had not requested said relief. Pending the hearing, the balance of the motions were held in abeyance.
Before the hearing could take place, the petitioner made another motion, dated July 21, 2005, seeking to utilize CCA § 411 and have the AOS deemed filed on May 20, 2005, nunc pro tunc. In opposition, the undertenant argues that failure to comply with RPAPL § 733(1) is a defect which requires the immediate dismissal of a case. (Berkeley v. Di Nolfi, 122 AD2d 703, 505 N.Y.S.2d 630 [1st Dept. 1986].) The Berkeley decision, however, involved a post-eviction motion to vacate a default judgment, and relief pursuant to CCA § 411 was not available. (Friedlander v. Ramos, 3 Misc 3d 33, 779 N.Y.S.2d 327 [2nd Dept. 2004].) Moreover, the Appellate Term of this Department has specifically held, both before and after Berkeley, that failure to file proof of service within the period mandated by RPAPL § 733 does not constitute a jurisdictional defect, and nunc pro tunc relief under CCA § 411 may be utilized. (Jamal v. Crockwell, 113 Misc 2d 548, 453 N.Y.S.2d 134 [App. Term, 1st Dept. 1982]; NY Hanover v. Martinaitis, N.Y.L.J., Sept. 25, 1992, pg. 25, col. 2 [App. Term 1st Dept.]; Farm v. Malcom, N.Y.L.J., Oct. 28, 1996, pg. 27, col. 4 [App. Term, 1st Dept.]; Ardowort v. Bierly, N.Y.L.J., March 21, 1994, pg. 29, col. 6 [App. Term, 1st Dept.].) Therefore, as the undertenant has not demonstrated any prejudice, the petitioner's July 21, 2005-motion for CCA § 411 relief is granted and that portion of the undertenant's motion which sought dismissal based upon RPAPL § 733(1) is denied.
The undertenant's motion also sought dismissal due to the petitioner's alleged failure to serve him with the predicate notices (i.e., Notice to Cure and Notice of Termination), and the petitioner's alleged failure to set forth its interest in the subject premises, or authority to maintain the instant proceeding pursuant to RPAPL § 721. It is well-settled, however, that there is no requirement that the petitioner serve the undertenant with the predicate notice(s), (Hughes v. Lenox, 226 AD2d 4, 651 N.Y.S.2d 418 [1st Dept. 1996]; 170 West v. Cruz, 173 AD2d 338, 569 N.Y.S.2d 705 [1st Dept. 1991]), and that questions of title or ownership are not litigated in summary proceedings. (Ferber v. Salon, 174 Misc 2d 945, 668 N.Y.S.2d 864 [App. Term 1st Dept. 1997].) Moreover, the courts have adopted a flexible approach regarding the description of a petitioner's interest, and an inflexible approach to issues that may somehow pertain to title or ownership. (Reich v. Cochran, 201 NY 450, 94 N.E. 1080 [1911]; Ferber v. Salon, 174 Misc 2d 945, supra; Kaplan v. Bernstein, 115 Misc. 413, 188 N.Y.S. 350 [App. Term 2nd Dept. 1921].) Given the aforementioned, and the fact that the most recent lease renewal dated July 9, 2003, was entered into by Trygve Sandberg and Fame Company, the petition's description of Fame Company as "landlord" sufficiently describes the petitioner's interest in the subject premises, and the petitioner is entitled to bring this action under RPAPL § 721(1) as the "landlord." Therefore, the balance of the undertenant's motion which seeks dismissal is denied.
The court will now address the parties' request for discovery. Given the allegation that Mr. Sandberg has not occupied the subject premises since 1995, despite singing the last renewal lease dated July 9, 2003; the petitioner's production of a written statement from the respondents, [*3]in which they represented that they were living in the apartment together and that undertenant was paying, and petitioner could accept, rental checks from the undertenant without creating a landlord-tenant relationship with undertenant; and the presumption in favor of discovery in holdover proceedings, (New York University v. Farkas, 121 Misc 2d 643, 468 N.Y.S.2d 808 [N.Y.C. Civ. Ct. 1983]), the court is satisfied that the petitioner has demonstrated ample need for discovery, (id.), and its motion for same is granted accordingly. As for the undertenant's request for discovery, according to his affidavit dated June 28, 2005, during the course of his occupancy, he has signed off on documents (e.g., work orders) prepared by the petitioner, and has received correspondences from the petitioner. All of these documents, however, should also be in the undertenant's possession, and he should be more than able to testify at trial regarding any work done by the petitioner under his supervision at the subject premises. The undertenant also seeks to depose Alan Manocherian (see Exhibit E: "Notice To Take Deposition"); however, he does not explain who this person is or how that person's testimony is relevant. The undertenant also states that he "was not privy to direct communication between the landlord and the tenant of record, and therefore, the documents which [he] seek are in the landlord's custody and control, not [his]." As Mr. Sandberg has not appeared in this proceeding, but is allegedly living in Connecticut, and the allegation of illusory tenancy, the undertenant's request for discovery is granted only to the extent of entitling him to all agreements and/or correspondences between the petitioner and Mr. Sandberg, since January 1, 1993. All other aspects of the undertenant's motion is denied.
The proceeding is marked off the calendar pending discovery, monthly use and occupancy is set at the last legal rental amount, and the undertenant is directed to pay without prejudice all unpaid use and occupancy which may have accrued since the commencement of this proceeding within five days after service of a copy of this order with notice of entry. The undertenant is further directed to pay without prejudice the ongoing monthly use and occupancy on or before the fifth day of each month during the pendency of this proceeding. This constitutes the decision and order of this court, copies of which are being mailed by the Court to the parties.
September 6, 2005_________________________
Date Judge, Housing Court
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
