Kesoglides v Marine Terrace Assoc.

[*1] Kesoglides v Marine Terrace Assoc. 2021 NY Slip Op 50126(U) Decided on February 19, 2021 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 19, 2021
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : THOMAS P. ALIOTTA, P.J., MICHELLE WESTON, WAVNY TOUSSAINT, JJ
2018-551 Q C

George Kesoglides, Appellant,

against

Marine Terrace Associates, Marine Terrace H.D.F.C., as Nominee for Marine Terrace Preservation, L.P., etc., and Margareth Arce, Respondents.

Anna Stern, for appellant. Marine Terrace Associates, respondent pro se (no brief filed). Gutman, Mintz, Baker & Sonnenfeldt, P.C., (Arianna Gonzalez-Abreu and Gary Friedman, of counsel), for respondents Marine Terrace HDFC, etc. Queens Legal Services, (Vince Chan and Dustin Pangonis, of counsel), for respondent Margaret Arce.

Appeal from an order of the Civil Court of the City of New York, Queens County (Clifton A. Nembhard, J.), dated October 13, 2017. The order, in effect, dismissed the petition in a summary proceeding brought pursuant to RPAPL 713 (10) and denied as moot petitioner's "cross motion" to implead a party respondent and his separate motion to limit the scope of the issues for trial.

ORDERED that the order is affirmed, without costs.

Petitioner was evicted from the subject Section 8 apartment in June of 2012 pursuant to a final judgment of possession dated October 31, 2011. In August of 2012, the apartment was re-let to respondent Margareth Arce. This court reversed the final judgment by decision and order dated August 18, 2014 (Marine Terrace Assoc. v Kesoglides, 44 Misc 3d 141[A], 2014 NY Slip Op 51303[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]). After petitioner's motion for restitution in the prior summary proceeding had been denied without prejudice by the Civil Court,[FN1] petitioner commenced this unlawful entry and detainer proceeding (see RPAPL 713 [10]) seeking to be restored to possession. After a great deal of motion practice, the Civil Court, by order dated October 13, 2017, in effect, dismissed the petition and denied as moot two pending motions (one of which was denominated a "cross motion") brought by petitioner.

An RPAPL 713 (10) proceeding is not the equivalent of an ejectment action and may be maintained only when "[t]he person in possession has entered the property or remains in possession by force or unlawful means." The record demonstrates, and petitioner does not [*2]dispute, that Arce was in possession of the apartment at the commencement of this proceeding pursuant to a Section 8 lease which had been executed and went into effect two months after petitioner had been evicted and two years before the final judgment, pursuant to which petitioner had been evicted, had been reversed. In these circumstances, "the person in possession" did not enter the property by unlawful means, nor can it be said that she remained in possession by unlawful means at the time this proceeding was commenced. Thus, there is no basis for this summary proceeding.

Accordingly, the order is affirmed.

ALIOTTA, P.J., WESTON and TOUSSAINT, JJ., concur.

ENTER:

Paul Kenny

Chief Clerk

Decision Date: February 19, 2021

Footnotes

Footnote 1: We note that "[r]estitution upon motion is discretionary" (Golde Clothes Shops, Inc. v Loew's Buffalo Theatres, Inc., 236 NY 465, 472 [1923]) and that petitioner did not appeal the Civil Court's denial of his motion for restitution.