Bakht v Akhtar

[*1] Bakht v Akhtar 2010 NY Slip Op 51344(U) [28 Misc 3d 134(A)] Decided on July 29, 2010 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 29, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and GOLIA, JJ
2008-2254 Q C.

Mohammad A. Bakht, Respondent,

against

Shirin Akhtar, Appellant, -and- "JOHN DOE" and "JANE DOE", Undertenants.

Appeal from a final judgment of the Civil Court of the City of New York, Queens County (Ronni Dale Birnbaum, J.), entered December 4, 2008. The final judgment, after a nonjury trial, awarded possession to landlord in a holdover summary proceeding.

ORDERED that the final judgment is affirmed without costs.

In this holdover proceeding, landlord seeks to recover possession of one room of an apartment, a bedroom, from his sister-in-law, who, in prior litigation between the parties, has been held to be a tenant at will in the apartment together with landlord's father and mother. Landlord claims that tenant abandoned the rest of the apartment. Although named as respondents in the prior litigation, landlord's parents were not named as respondents in the instant proceeding. Tenant asserts that she is in possession of the entire apartment, not just the bedroom, that the petition thus misdescribes the premises, and that landlord's parents are necessary parties. After a nonjury trial, the Civil Court found that tenant had abandoned all of the apartment except for the bedroom described in the petition, and awarded possession of the bedroom to landlord.

The Civil Court's finding that tenant had abandoned the apartment except for her bedroom, resting in large measure on considerations relating to the credibility of the witnesses, is supported by the record and will not be disturbed (see Sterling Inv. Servs., Inc. v 1155 NOBO Assoc., LLC, 65 AD3d 1128, 1129 [2009]). In view of the finding of an abandonment, there is no merit to tenant's contention that the petition misdescribes the premises sought to be recovered. [*2]Contrary to tenant's further contention, landlord's parents were not necessary parties. Since the only unity between tenant and the other cotenants was the right of possession, and there was no unity of interest (see Jemzura v Jemzura, 36 NY2d 496, 503 [1975]; 2 Tiffany Real Property § 426), landlord was within his rights in terminating only tenant's tenancy at will, and not that of the cotenants, and in bringing a proceeding to remove only tenant (cf. Washington v Palanzo, 192 Misc 2d 577, 581 [App Term, 9th & 10th Jud Dists 2002] ["a summary proceeding need not be brought against all licensees to be effective against one"]).

Accordingly, the final judgment is affirmed.

Pesce, P.J., Weston and Golia, JJ., concur.
Decision Date: July 29, 2010