Bay Ridge Chicken Grill, Inc. v Cirrus Data Intl., LLC

[*1] Bay Ridge Chicken Grill, Inc. v Cirrus Data Intl., LLC 2015 NY Slip Op 51452(U) Decided on September 30, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 30, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and ELLIOT, JJ.
2013-1599 K C

Bay Ridge Chicken Grill, Inc., Respondent,

against

Cirrus Data International, LLC, Appellant, -and- Glamme, LLC, Landlord. .

Appeal from an order of the Civil Court of the City of New York, Kings County (Wavny Toussaint, J.), dated July 1, 2013. The order, insofar as appealed from, granted so much of the petition as sought to restore tenant to possession and denied landlord Cirrus Data International, LLC's "cross motion" to dismiss the petition, in a summary proceeding brought pursuant to RPAPL 713 (10).

ORDERED that the order, insofar as appealed from, is reversed, without costs, so much of the petition as sought to restore tenant to possession is denied, and landlord Cirrus Data International, LLC's "cross motion" to dismiss the petition is granted.

Tenant commenced this summary proceeding pursuant to RPAPL 713 (10), by order to show cause (see CPLR 403 [d]) and supporting affidavit and attorney's affirmation (deemed a petition), against its landlord, Cirrus Data International, LLC (Cirrus), and the predecessor landlord, Glamme, LLC, alleging that Cirrus had illegally locked tenant out of its leased space and seeking, insofar as is relevant to this appeal, to be restored to possession. Cirrus "cross-moved" to dismiss the petition pursuant to CPLR 3211 (a) (1), (7) and (10). After a hearing, the Civil Court restored tenant to possession and implicitly denied Cirrus's "cross motion."

In a summary proceeding pursuant to RPAPL 713 (10) based on an alleged unlawful entry and detainer, "the person in possession" of the property must be made a party respondent (RPAPL 713 [10]). The record establishes that there was a new tenant, which had entered into a lease with Cirrus, in possession at the time of the commencement of the proceeding. Since "the person in possession" was not served, jurisdiction over the property was not acquired (Radlog Realty Corp. v Geiger, 254 App Div 352 [1938]; Warrin v Haverty, 149 App Div 564 [1912]; cf. Saccheri v Cathedral Props. Corp., 43 Misc 3d 20 [App Term, 9th & 10th Jud Dists 2014] [an objection that no named respondent had possession did not involve subject matter jurisdiction]) and, thus, the petition should have been dismissed.

Accordingly, the order, insofar as appealed from, is reversed, so much of the petition as [*2]sought to restore tenant to possession is denied, and Cirrus's "cross motion" to dismiss the petition is granted.

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

Decision Date: September 30, 2015