Morel v Sainval

[*1] Morel v Sainval 2008 NY Slip Op 52489(U) [21 Misc 3d 1143(A)] Decided on December 12, 2008 District Court, First District, Nassau County 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 12, 2008
District Court, First District, Nassau County

Jacques D. Morel and LINDA MOREL, Petitioner(s)

against

Marie Y. Sainval a/k/a MARIE Y. SANINUAL, Respondent(s)



SP 004992/08



Law Offices of Thomas Weiss, P.C., Attorney for Petitioner, 20 Hempstead Turnpike, West Hempstead, New York 11552, 516-248-8131; Law Offices of George M. Gavalas, P.C., Attorneys for Respondent, 200 Old Country Road, Suite 590, Mineola, New York 11501, 516-746-1515.

Scott Fairgrieve, J.

Petitioners commenced this holdover proceeding to evict respondent Marie Y. Sainval from 64 Teresa Place, Hempstead, New York. The petition alleges that, prior to August 29, 2008, the respondent "intruded into or squatted upon the subject premises and has continued and now is in possession thereof." The petitioners served the respondent with a Ten Day Notice to Quit on August 29, 2008. The respondent failed to vacate and refused to do so.

The petition requests final judgment awarding possession of the premises to the petitioners; issuance of a warrant to remove the respondent; judgment of at least $5,000.00 for the fair value of use and occupancy of the premises; interest from August 29, 2008; attorneys' fees in the amount of $1,100.00; and costs and disbursements herein. The respondent filed an answer with nine affirmative defenses and three counterclaims.

The respondent now moves for "an order dismissing the petition herein as fatally defective due to defective pre-requisite Thirty (30) day Notice pursuant to RPAPL 232(b)." Counsel maintains that the petitioners failed to serve the respondent with a notice pursuant to RPAPL §232-b. It is asserted by counsel that the property was purchased by the petitioners at a foreclosure sale and was subject to all tenancies. Therefore, counsel posits, the occupants are entitled to a thirty day notice of cancellation pursuant to RPAPL §232-b to terminate any claimed tenancies.

The petitioner, Jacques Morel, in his affidavit in opposition to the respondent's motion, states that he purchased the premises as a result of a foreclosure sale on August 15, 2008. He contends [*2]that, prior to said date, he had no knowledge of the respondent or knowledge, as the respondent's counsel alleges, that the respondent had a contract to purchase the premises. He was told that there was no key for the premises and that he had to change the lock. When the petitioners arrived at the premises on August 16, 2008, he states that the place appeared to have been long abandoned and all utility services were off as there was no electrical, gas or water services functioning at that time. He alleges that the premises was and continues to remain completely uninhabitable.

Although the respondent maintains that she is a tenant, she has failed to submit any proof that she has a right to live in the subject premises. She has not met her burden to establish that a landlord tenant relationship exists between the parties and that she is entitled to notice pursuant to RPAPL § 232-b.

In his affirmation in support of the respondent's motion, counsel further avers that the petition is also fatally and procedurally defective as the petitioners failed to certify the referee's deed annexed to the ten day notice to quit. However, since the respondent has not established that a landlord tenant relationship exists between the parties, the petitioners treated the respondent as a squatter and served her pursuant to RPAPL §713(3).

§ 713. Grounds where no landlord-tenant relationship exists 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 section 735 upon the following grounds: 3. He or the person to whom he has succeeded has intruded into or squatted upon the property without the permission of the person entitled to possession and the occupancy has continued without permission or permission has been revoked and notice of the revocation given to the person to be removed.

The notice sent to the respondent describes the premises, the requirement to quit by a certain date, and the consequences of a failure to vacate the premises. Her motion to dismiss based upon a defective thirty day notice is denied.

The petitioner's cross motion is decided as follows:

In light of the above, the respondent's first affirmative defense which alleges that the Court lacks jurisdiction based upon the alleged failure to comply with the statutory requirement for the prerequisite notice is dismissed, as is the third affirmative defense based upon a failure to serve a thirty day notice and the ninth affirmative defense alleging that the predicate notice was defective because the referee's deed was not certified. The fourth affirmative defense based upon the respondent's contention that the petitioners purchased the property subject to tenancies including the respondent is also dismissed. The respondent has failed to establish that she has any rights or interest in the subject premises. The second affirmative defense which alleges a lack of jurisdiction [*3]due to improper service of process of the Notice of Petition and Petition is waived since the respondent moved to dismiss without raising this defense (CPLR 3211[e]).

The Court will address the counterclaims at the trial. This case is set down for conference/trial on January 12, 2009 at 11:00 a.m.

/s/ Hon. Scott Fairgrieve

DISTRICT COURT JUDGE

Dated:December 12, 2008

CC:Law Offices of George M. Gavalas, P.C.

Law Offices of Thoms Weiss, P.C.

SF/mp