Ronald Henry Land Trust v Sasmor

[*1] Ronald Henry Land Trust v Sasmor 2014 NY Slip Op 24163 Decided on June 13, 2014 Appellate Term, Second 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 13, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., SOLOMON and ELLIOT, JJ.
2013-1591 K C

Ronald Henry Land Trust, Respondent,

against

Jon Sasmor, Appellant, -and- LISA LIN, Tenant.

Appeal from a final judgment of the Civil Court of the City of New York, Kings County (Eleanora Ofshtein, J.), entered October 10, 2012. The final judgment, insofar as appealed from, after a nonjury trial, awarded possession to petitioner as against tenant Jon Sasmor, in a holdover summary proceeding.

ORDERED that the final judgment is reversed, without costs, and the matter is remitted to the Civil Court for the entry of a final judgment dismissing the petition.

This holdover summary proceeding was brought in the name of an express trust (see EPTL 7-2.1 [a]). Despite repeated objections by appellant Jon Sasmor (tenant) in

the answer, in opposition to petitioner's motion for summary judgment, and by trial motion, that petitioner lacked the capacity to maintain this proceeding, as the statute vests the legal estate of an express trust in the trustees, no motion was ever made to join the trustees or to amend the caption to reflect that the trustees were the proper parties petitioner. In fact, the trustees did everything in their power to avoid disclosing their identities and appearing in this proceeding, including moving to quash the subpoenas that tenant had served upon them. In these circumstances, tenant's motion to dismiss the petition for lack of capacity should have been granted (see EPTL 7-2.1 [a]; CPLR 1004; Matter of Straut, 126 NY 201 [1891]; Matter of Beiny, 23 Misc 3d 1112[A], 2009 NY Slip Op 50716[U] [Sur Ct, Bronx County 2009]; Limouze v MM & P Maritime Advancement, Training, Educ. and Safety Pgm., 397 F Supp 784, 787-790 [DC Md 1975]; but cf. Bedford Apts. Co. v Coutts, NYLJ, Nov. 30, 2000 at 29, col 6 [App Term, 1st Dept]).

We note that, while tenant Lisa Lin has not appealed, she is, in the circumstances presented, united in interest with the appealing tenant, and, thus, the final judgment must be reversed as to both tenants (see e.g. Priegue v Paulus, 42 Misc 3d 135[A], 2014 NY Slip Op 50662[U] [App Term, 9th & 10th Jud Dists 2014]).

Accordingly, the final judgment is reversed and the matter is remitted to the Civil Court for the entry of a final judgment dismissing the petition.

Pesce, P.J., Solomon and Elliot, JJ., concur.

Decision Date: June 13, 2014