Sarva v Kaikov

[*1] Sarva v Kaikov 2013 NY Slip Op 52169(U) Decided on December 16, 2013 District Court Of Nassau County, First District Fairgrieve, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 16, 2013
District Court of Nassau County, First District

Ramesh Sarva, Petitioner(s)

against

Arihay Kaikov and KHRYSTYNA OVCHARENKO, "JOHN DOE" and "JANE DOE", Respondent(s).



LT-005101-13



Novick, Edelstein, Lubell, Reisman, Wasserman & Leventhal, P.C., Attorneys for Petitioner, 733 Yonkers Avenue, Yonkers, New York 10704, 914-375-0100; Steven Zalewski & Associates, P.C., Attorneys for Respondent, 125-10 Queens Boulevard, Suite 218, Kew Gardens, New York 11415.

Scott Fairgrieve, J.

The following named papers numbered 1 to 4

submitted on this Motion and Cross Motion

on November 12, 2013

papers numbered

Notice of Motion and Supporting Documents1Notice of Cross Motion/Opposition to Motion & Supporting Documents2

Affirmation in Reply to Motion and in Opposition to Cross Motion3

Affirmation in Reply4 [*2]

The respondents move for an order, pursuant to CPLR 3211, dismissing the petition. The petitioner opposes the instant motion and cross-moves for an order, pursuant to CPLR 3211(b), dismissing and/or striking certain defenses raised in the respondents' answer and permitting petitioner leave of court to conduct discovery, pursuant to CPLR 408, via document and depositions and non-party witness, Dmitriy Prosolov.

On September 12, 2013, the petitioner commenced the instant holdover proceeding against the respondents seeking a final judgment of eviction and possession of the subject premises located at 382 I.U. Willets Road, Roslyn Heights, New York. The petitioner is also seeking a money judgment, in the amount of $171,000.00, for fair use and occupancy.

The respondents argue that the petition is defective because it incorrectly states that a landlord-tenant relationship existed between the parties. In opposition, the petitioner argues that, based upon a lease entered into between PSRS Realty and Dmitriy Prosolov for the subject premises, the respondents are tenants at sufferance because Mr. Prosolov assigned and/or sublet the premises to the respondents and the term of the lease has expired.

Finkelstein and Ferrara, Landlord Tenant Practice in New York §2:116 at 149 (2012) states that "[w]hen a prime tenant has vacated space because its lease has terminated or expired and a subtenant adversely remains in occupancy of the space, landlord's inaction in diligently effecting an eviction will result in the subtenant becoming a tenant-at-sufferance' even in the absence of interim rent payments (citations omitted)."

However, even if the respondents were found to be tenants at sufferance, the petition is defective. Because the petition is based upon the existence of a landlord-tenant relationship between the parties, Ramesh Sarva is not the proper party to bring this action. Although Mr. Sarva signed the lease, he did so on behalf of PSRS Realty which is named as the landlord in the lease. Therefore, based upon the facts as set forth by the petitioner, the respondents would only be tenants-at-sufferance in regard to PSRS Realty and not Mr. Sarva.

Accordingly, the respondents' motion is granted and the petition is hereby dismissed. Based upon the dismissal, the petitioner's cross-motion is denied as moot.

So Ordered:

/s/ Hon. Scott Fairgrieve

DISTRICT COURT JUDGE

Dated:December 16, 2013