Sethi v Kaur

[*1] Sethi v Kaur 2007 NY Slip Op 51453(U) [16 Misc 3d 1117(A)] Decided on August 1, 2007 District Court Of Nassau County, First District Fairgrieve, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 1, 2007
District Court of Nassau County, First District

Harish K. Sethi, Petitioner(s)

against

Kulwinder Kaur, NIRMAL S. BAL, SIMARJIT S. BAL, "JOHN DOE", Respondent(s).



SP 1126/06



REPRESENTATION:

Wayne M. Greenwald, Esq., Attorney for Petitioner, 99 Park Avenue, Suite 800, New York, New York 10016, 212-983-1922; Sandback, Birnbaum & Michelen, Attorneys for Respondent, 200 Old Country Road, Suite 2S, Mineola, New York 11501-4242

Scott Fairgrieve, J.

Petitioner Harish K. Sethi moves to vacate the court order staying a Warrant of Eviction, granted in favor of Hakirat Bal. Hakirat Bal, as the daughter of Respondents resided at the disputed premises for 6 years. In the initial proceeding, the court refused to grant Petitioner relief against Hakirat Bal because Petitioner failed to include her in the previous eviction proceedings. She was not a signatory to the previous Stipulation of Settlement on June 6, 2006 nor was she served with process. Hakirat Bal and Petitioner executed a contract to purchase the disputed premises in October 2006 with the closing to occur November 20, 2006.

The Respondents status as a tenant is derived from paragraph 9 in the rider attached to the October 2006 contract of sale which recognized Hakirat Bal as a tenant. Respondent Hakirat Bal's status, as a tenant was merged into that of a vendee upon execution of the contract of sale in October 2006, thereby terminating the landlord-tenant relationship.

The general rule is that "execution of a contract of sale between a landlord and tenant serves to merge the landlord-tenant relationship into the vendor-vendee relationship, thereby terminating the former unless the parties clearly intend the contrary result" Barbarita v Shilling 111 AD2d 200, 489 NYS2d 86. The execution of the contract of sale in October 2006 between Petitioner and Respondent terminated the previous landlord-tenant relationship and created a vendor-vendee relationship.

The parties may deviate from the general rule of merger only by an express declaration in the agreement to this effect Hadlick v DiGiantommaso 154 A.D.2d 338, 545 NYS2d 816. The contract of sale in October 2006 contained no express declaration indicating the parties sought to maintain the landlord-tenant relationship. An intention to deviate from the general rule may be inferred by the terms of the agreement, the circumstances of its making and the subsequent behavior of the parties Barbarita v Shilling. The terms of the agreement are silent as to an intention to deviate from the general rule. Neither of the parties submitted evidence regarding the circumstances surrounding the creation of the contract of sale that would indicate an intention to deviate from the general rule. [*2]Petitioner has not provided sufficient evidence regarding the behavior of the parties to indicate an intention to deviate from the general rule.

RPAPL 713(9) states:

A special proceeding may be maintained under this article after a ten day notice to quit has been served upon the respondent in the manner prescribed in RPAPL 735, upon the following grounds: (9) A vendee under contract of sale, the performance of which is to be completed within 90 days after its execution, being in possession of all or part thereof and having defaulted in the performance of the terms in the contract of sale, remains in possession without permission of the vendor.

Upon execution the contract of sale of October 2006, the Petitioner and Respondent merged the landlord-tenant relationship into a vendor-vendee relationship, thereby terminating the former.

The closing never took place apparently due to Hakirat Bal's breach of contract in failing to pay amounts owed under the contract and in failing to close despite numerous attempts by Petitioner to close the deal.

The Petitioner asserts "the parties were never in a vendor-vendee relationship, because the option to purchase [was] never fully exercised" Lelekakis v Kamamis, -N.Y.S.-, 2007 WL 1775993 (N.Y.A.D. 2 Dept.), 2007 NY Slip Op. 05474. In the present case, Petitioner fails to acknowledge that the Respondent did not exercise an option to purchase the disputed premises. Instead, Respondent entered into a contract of sale for the premises. Since there was no option to exercise, Petitioner's reference to Fulgenzi v Rink, 253 AD2d 846, 678 NYS2d 360 (2nd Dept. 1998) is misplaced

Since the contract prescribed that the closing was to be performed within 90 days, Petitioner could have proceeded to commence a special proceeding under RPAPL 713(9) with a ten day notice to quit Secretary of Hous. & Urban Dev. v Lemaire, 4 Misc 3d 137(A), 791 NYS2d 873, 2004 WL 1769227 (N.Y.Sup.App.Term).

Respondent, as a vendee in default must be evicted by Petitioner from the disputed premises pursuant to RPAPL 713(9).

Even if the court is incorrect as to Respondent Hakirat Bal's status as a vendee, she certainly qualifies as a tenant, as admitted in paragraph 9 of the rider attached to the contract of sale. Under no circumstances does Hakirat Bal qualify as an occupant, which would allow her to be evicted without being named in a proceeding.

This constitutes the decision and order of the Court.

So Ordered:

/s/ [*3]

DISTRICT COURT JUDGE

Dated:August 1, 2007

CC:Wayne Greenwald P.C.

Sandback, Birnbaum & Michelen