Robles v Margaritis

[*1] Robles v Margaritis 2016 NY Slip Op 26131 Decided on April 27, 2016 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 subject to revision before publication in the printed Official Reports.

Decided on April 27, 2016
District Court of Nassau County, First District

Bima Robles, AND C AND C REAL INVESTORS LLC, AGENT FOR LANDLORD, Petitioner(s)

against

Constantine Margaritis and CHARITY MAE RUIZ, Respondent(s).



LT-005239-15



Rachel N. King, Esq., Attorney for Petitioner, 101-A South Wellwood Avenue, Lindenhurst, NY 11757, (631) 412-7565; The Law Offices of Geoffrey T. Mott, P.C., Attorney for Respondents, 249 West Merrick Road, Freeport, NY 11783, (516) 544-4600.
Scott Fairgrieve, J.

The following named papers numbered 1 to 3

submitted on this Motion to Dismiss Petition on March 31, 2016

papers numbered

Notice of Motion to Dismiss the Petition1

Affirmation in Opposition2

Attorney's Reply Affirmation in Support of Motion to Dismiss3

Respondents move for an order seeking to dismiss the Petition for failure to name the [*2]Landlord in the Lease pursuant to RPAPL Sections 721 and 741. Respondents state that the proceeding should have been brought in the name of the Landlord set forth in the Lease, namely C and C Real Investors, LLC.

Petitioner has commenced a non-payment proceeding to recover the premises located at 3 Lawnside Drive, Hicksville, New York from Respondent who owes $24,100.00. The Lease dated 2/20/14 identifies C and C Real Investors, LLC as the Landlord. The Lease was executed as follows:

2/20/14C and C Real Investors, LLC

DateLandlord or Landlord's Agent

The 3 Day Notice to Tenant, dated August 27, 2015 attached to the Petition indicates that $22,200.00 is owed and is executed by "Landlord: Bima Robles."

The Notice of Petition and Petition, both dated September 29, 2015, have the following caption:

BIMA ROBLES, AND C AND C REAL INVESTORS LLC., AGENT FOR LANDLORD,

Petitioner (Landlord)

against -

CONSTANTINE MARGARITIS,

Respondent (Tenant)

and

CHARITY MAE RUIZ,

Respondent (Under-Tenant)

Address:3 Lawnside Drive - WHOLE HOUSE

Hicksville, New York 11801

Paragraph 2 of the Petition states that Respondent Constantine Margaritis entered into a "MONTH TO MONTH WRITTEN rental agreement made on or about February 1, 2014, between Respondent as tenant and Petitioner as Landlord, . . . "

The proceeding has been commenced by Bima Robles and C and C Real Estate Investors LLC., Agent for Landlord.

In opposition, Petitioner submits the certified deed dated January 3, 2007, establishing that Bima Robles is the owner of the premises. The rent demand, dated August 27, 2015, is signed by Bima Robles as Landlord.

Does Bima Robles and C and C Real Investors LLC, Agent for Landlord, Petitioner [*3](Landlord), have standing to commence this non-payment proceeding?

The answer is in the negative. RPAPL Section 721 states:

"§ 721.Person who may maintain proceeding

The proceeding may be brought by:

1. The landlord or lessor . . . ."

A non-payment proceeding is based upon a rental agreement between the Landlord and tenant. See 265 Realty, LLC v. Trec, 39 Misc 3d 150(A), 975 NYS2d 370, 2013 WL 3111295, 2013 NY Slip Op 50974(U), wherein the Court stated:

"Thus, there was no lease in effect after August 31, 2009. Since there was no payment and acceptance of rent after the expiration of the last lease on August 31, 2009, no month-to-month tenancy was created (Real Property Law § 232-c; see Matter of Jaroslow v. Lehigh Val. R.R. Co., 23 NY2d 991 [1969]; cf. Samson Mgt., LLC v. Hubert, 92 AD3d 932). Because a nonpayment proceeding must be predicated on a rental agreement that is in effect at the time the proceeding is commenced (Matter of Jaroslow, 23 NY2d 991; 615 Nostrand Ave. Corp. v. Roach, 15 Misc 3d 1 [App Term, 2d, 11th & 13th Jud Dists 2006]; Licht v. Moses, 11 Misc 3d 76 [App Term, 2d & 11th Jud Dists 2006]) and no rental agreement was in effect (see Pald Enters. v. Gonzalez, 173 Misc 2d 681 [App Term, 2d & 11th Jud Dists 1997]; cf. Stern v. Equitable Trust Co. of NY, 238 NY 267, 269 [1924] ["the relation of landlord and tenant is always created by contract, express or implied, and will not be implied where the acts and conduct of the parties negative its existence"]), the petition must be dismissed. Consequently, landlord's acceptance for attorney's fees must also be denied."

Similarly the Court in Underhill Ave. Realty, LLC v. Ramos, 49 Misc 3d 155(A) (App. Term, 2d Dep't 2015) dismissed the proceeding because no rental agreement was in effect during the period in question because the landlord's predecessor had refused to issue a renewal lease to tenant.

In the case at bar, the Lease is between Landlord C and C Real Investors, LLC and Constantine Margaritis. The name of Bima Robles does not appear in the Lease, either as Landlord or signatory.

The relationship of the Landlord/Tenant is based upon agreement (privity of contract) and transfer of possession (privity of estate). (See New Amsterdam Casualty Co. v. National Union Free Fire Ins. Co. of Pittsburg, PA, 266 NY 254 [1935]). There is no relationship of privity of contract and privity of estate between the petitioners and respondent.

Since there is no privity between the parties, this proceeding must be dismissed. In 3414 KNOS LLC v. Christopher Bryant, 1/12/2011 N.Y.L.J. 35 (Civ Ct, Bronx Cty), the proceeding was brought by the owner of the property and not the lease holder. The Court held that the owner of the property had no privity with the tenant requiring the proceeding to be dismissed. This mistake or oversight was not amendable. The Court stated:

"It is conceded by petitioner that 3414 KNOS LLC, is not the proper party to this proceeding. Petitioner admits that a mistake was made by counsel for petitioner in drafting the petition. Inadvertently counsel used the name of the owner of the property instead of the leaseholder. Although strict compliance is the standard of summary eviction proceedings, the courts consider some defects amendable.While this is an oversight, it is not amendable. 3414 KNOS LLC had no right to institute the proceeding against respondent in order to obtain possession. There must be privity between the parties. See New Amsterdam Casualty Co. v. National Union Fire Ins. Co. of Pittsburg, Pa., 266 NY 254, 194 N.E. 745, 99 A.L.R. 216 (1935)."

See also, Residential Landlord - Tenant Law in New York, Section 7:73 wherein the following is stated:

"§ 7:73. Persons who may maintain proceeding — Landlord or lessor -Privity is requiredThe relationship of the landlord to the respondent must involve both privity of contract, based on the agreement between the parties, and privity of estate, based on the transfer of interest in the real property. New Amsterdam Casualty Co. v. National Union Fire Ins. Co. of Pittsburg, Pa., 266 NY 254, 194 N.E. 754, 99 A.L.R. 216 (1935).In other words, an owner may maintain a summary eviction proceeding against a respondent if the owner entered into a lease or other occupancy agreement with the respondent, or if the owner succeeded to the interests of one who had such an agreement. See, e.g., 3414 Knos LLC v. Bryant, 1/12/2011 N.Y.L.J. 35 (Civil Court, Bronx County) (proceeding brought by owner, not leaseholder, of apartment was jurisdictionally defective and not amendable)."

Based upon the foregoing, this proceeding is dismissed without prejudice to renewal because there is no Landlord/Tenant relationship between Petitioner and Respondents.

So Ordered:

/s/ Hon. Scott Fairgrieve

DISTRICT COURT JUDGE

Dated:April 27, 2016