T.D. Bank, N.A. v Yeshiva Chofetz Chaim, Inc.

[*1] T.D. Bank, N.A. v Yeshiva Chofetz Chaim, Inc. 2015 NY Slip Op 50912(U) Decided on June 11, 2015 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 11, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : TOLBERT, J.P., GARGUILO and CONNOLLY, JJ.
2014-2510 RO C

T.D. Bank, N.A., Respondent,

against

Yeshiva Chofetz Chaim, Inc., Appellant, -and- TALLMAN ACADEMY OF JEWISH STUDIES, and all other persons occupying premises known as 82 Highview Road, Village of Suffern, Town of Ramapo, County of Rockland, State of New York, Undertenants.

Appeal from an order of the Justice Court of the Town of Ramapo, Rockland County (Alan M. Simon, J.), dated October 14, 2014. The order granted petitioner's motion for summary judgment in a summary proceeding brought pursuant to RPAPL 713 (5).

ORDERED that the order is reversed, without costs, and the matter is remitted to the Justice Court for a new determination of petitioner's motion for summary judgment in accordance with the decision herein.

In this summary proceeding by a purchaser in foreclosure to recover possession of a building used as a school (see RPAPL 713 [5]), the record reveals that Yeshiva Chofetz Chaim, Inc. (occupant) filed an answer in which it challenged, among other things, the service of the 10-day notice to quit. At a court conference on the return date of the petition, the court, apparently pursuant to an agreement of the parties, directed that, to resolve this service issue, the 10-day notice to quit should be re-served. Thereafter, the court granted a motion by petitioner for summary judgment, finding that the new notice "was issued and served properly and in accordance with the understanding reached in open Court."

In our view, the re-served notice cannot support an award of summary judgment to petitioner. In a summary proceeding pursuant to RPAPL 713, where a 10-day notice to quit is required, the petition must allege that the respondent has remained in possession after the expiration of the 10 days fixed in the notice to quit (Lally v Fasano-Lally, 22 Misc 3d 29 [App Term, 9th & 10th Jud Dists 2008]; see RPAPL 713). As the petition here could not make this required allegation as of the time the petition was filed, based on the re-served notice, the re-served notice cannot support a grant of summary judgment to petitioner.

In view of the foregoing, and since petitioner argues, in the alternative, that the service of [*2]its original notice to quit was proper, an issue not reached by the Justice Court, we reverse the order and remit the matter to the Justice Court for a new determination of petitioner's motion in accordance with this decision.

Tolbert, J.P., Garguilo and Connolly, JJ., concur.

Decision Date: June 11, 2015