Golden Mtn. Realty Inc. v Severino

[*1] Golden Mtn. Realty Inc. v Severino 2013 NY Slip Op 23215 Decided on June 28, 2013 Appellate Term, First Department 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 Miscellaneous Reports.

Decided on June 28, 2013
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Schoenfeld, Hunter, Jr., JJ
570988/12.

Golden Mountain Realty Inc. Petitioner-Appellant,

against

Abraham Severino, Respondent-Respondent.

Petitioner appeals from a final judgment of the Civil Court of the City of New York, New York County (Sabrina B. Kraus, J.), entered on or about February 29, 2012, after a nonjury trial, which dismissed the petition in a holdover summary proceeding.

Per Curiam.

Final judgment (Sabrina B. Kraus, J.), entered on or about February 29, 2012, reversed, petition reinstated and matter remanded for further proceedings consistent with this decision, with $30 costs to abide the event.

Petitioner commenced this holdover summary proceeding upon the death of the rent-controlled statutory tenant, based on allegations that respondent Severino's occupancy status was that of subtenant or licensee with no right to continued possession. The central focus of the trial was on respondent's properly pleaded succession defense, with respondent's counsel noting in pre-trial colloquy that "we waived jurisdictional defenses" in order to litigate the merits of what counsel described as a "strong" succession claim. Following a full trial on the merits, the court, sua sponte, dismissed petitioner's possessory cause of action because it did not first apply to the rent agency for a certificate of eviction. This was error, for in disputes involving succession rights, "administrative proceedings before the Division of Housing and Community Renewal (City Rent and Rehabilitation Law § 26-408; 9 NCYRR 2204.6) are not regarded as an exclusive remedy, and courts [including the Housing Part of Civil Court] have traditionally exercised concurrent jurisdiction in such cases" (Cox v J.D. Realty Assoc., 217 AD2d 179, 181 [1995][citations omitted]; see Misthopoulos v Estate of Ruhl, 183 AD2d 651, 652 [1992]; Schneyer v Silberg, 156 AD2d 200, 201 [1989]). As this Court previously noted in closely analogous circumstances, a holding requiring a landlord to first obtain a certificate of eviction from DHCR vis-a-vis the occupant in possession "would necessarily relegate all succession claims where the rent-controlled tenant has permanently vacated to the more protracted processes of the administrative agency, effectively negating the summary remedy available under RPAPL 713" (Bromer v Rosensweig, 166 Misc 2d 201, 202 [1995]).

The dismissal order premised solely on the unraised certificate of eviction issue must fall under the controlling precedents cited above. We remand the matter for such further proceedings [*2]as may be necessary to determine the merits of tenant's succession defense, an issue not addressed in the court's written decision.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: June 28, 2013