Rayevich, LLC v Gerstman

[*1] Rayevich, LLC v Gerstman 2014 NY Slip Op 51723(U) Decided on November 25, 2014 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 25, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., SOLOMON and ELLIOT, JJ.
2012-2722 K C

Rayevich, LLC, Respondent,

against

Helen Gerstman, Appellant.

Appeal from a final judgment of the Civil Court of the City of New York, Kings County (John S. Lansden, J.), entered July 26, 2012. The final judgment, after a nonjury trial, awarded possession to petitioner in a summary proceeding brought pursuant to RPAPL 713 (8).

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.

Petitioner, the purchaser of the co-operative shares allocated to the subject apartment, commenced this summary proceeding against occupant, who resides in the apartment and was a part owner of the building prior to its conversion to a co-op, pursuant to RPAPL 713 (8). Occupant appeals from a final judgment, after trial, awarding possession to petitioner.

RPAPL 713 (8) allows for the maintenance of a summary proceeding where "the owner of real property . . . having voluntarily conveyed title to the same to a purchaser for value, remains in possession without the permission of the purchaser." In our view, petitioner could not maintain this summary proceeding pursuant to this provision, as petitioner is a proprietary lessee and owner of the co-operative shares allocated to the apartment, and not a "purchaser for value" of the real property (cf. Federal Home Loan Mtge. Assn. v Perez, 40 Misc 3d 1 [App Term, 9th & 10th Jud Dists 2013] [an owner of co-operative shares cannot maintain a proceeding pursuant to RPAPL 713 (1), (5) or (7)]).

Accordingly, we reverse the final judgment and direct the entry of a final judgment dismissing the petition. We reach no other issue.

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

Decision Date: November 25, 2014