Espositio v 60 Beach LLC

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[*1] Espositio v 60 Beach LLC 2016 NY Slip Op 50009(U) Decided on January 6, 2016 Civil Court Of The City Of New York, New York County Kraus, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 6, 2016
Civil Court of the City of New York, New York County

Charles Espositio as Administrator of the Estate of Thomas Esposito, Petitioner


60 Beach LLC, Respondent.

L & T 87806/2015


Attorneys for Petitioner


260 Madison Avenue

New York, New York 10005


Attorneys for Respondent


270 Madison Avenue

New York, NY 10016

212 West 91st Street, Apt. 927/8

New York, New York 10024
Sabrina B. Kraus, J.


This summary proceeding was commenced by CHARLES ESPOSITIO AS ADMINISTRATOR OF THE ESTATE OF THOMAS ESPOSITO(Petitioner) the estate of the deceased tenant of record against 60 BEACH LLC (Respondent) the landlord and owner of the subject building, seeking to be restored to possession of Apartment 2D at 60 Beach Street, New York, New York 10013 (Subject Premises).

The underlying facts are largely uncontested. Thomas J Esposito (Tenant) was the last tenant or record of the Subject Premises. Tenant took possession of the Subject Premises pursuant to a written lease agreement dated April 10, 1978. The lease agreement was renewed but the renewal had long since expired. Tenant remained as a statutory month to month tenant.

On or about June 21, 1982, the Subject Premises became covered by the Loft Law and Tenant was a covered occupant. Tenant remained entitled to the protections of the Loft Law through the date of his death.

In December 2014, Respondent commenced a holdover proceeding against Tenant on the grounds of nuisance under Index Number 87179/2014. On May 5, 2015, the court reserved decision on pending motions in that proceeding.

Tenant died on June 4, 2015 (P's Ex B death certificate). Tenant died in the Subject

Premises. The Subject Premises was sealed by NYPD upon the Tenant's death.

On June 9, 2015, the holdover proceeding was marked off calendar based on Tenant's death.

In September 2015, Respondent commenced a nonpayment proceeding against Charles Esposito (CE) as next of kin to Tenant. The court has requisitioned the file from said nonpayment proceeding, Index Number 78323/15, and takes judicial notice of the contents of same and considers the contents of same to be part of the record herein. In its nonpayment petition, Respondent asserted both that CE was in legal and actual possession of the Subject Premises and that there was an unexpired agreement between Respondent and Tenant for the payment of rent. CE appeared in the proceeding and filed a sworn statement in response to the petition dated October 5, 2015 (P's Ex G), asserting that he was not in possession of the Subject Premises and that as of said date the Subject Premises remained sealed by the police. CE further stated in his answer that he was expecting to receive letters of administration shortly and that upon his receipt of same Respondent had agreed to give him a key to the Subject Premises for the purpose of removing Tenant's belongings from the Subject Premises.

On October 16, 2015, Surrogate's Court New York County issued Letters of Administration to Petitioner.

On November 4, 2015, the nonpayment proceeding was dismissed by the court. The

marking on the file indicates that it was dismissed based on Respondent's failure to appear. The parties engaged in settlement negotiations regarding Petitioner's time to access the

Subject Premises for the removal of belongings and the surrender by Petitioner of any remaining interest in the Subject Premises. The negotiations fell apart.

Petitioner did gain access to the Subject Premises on October 30, 2015 and November 287, 2015. The record does not indicate how Petitioner gained access on these dates.

On or about December 1, 2015, Respondent filed an abandonment application with the

Loft Board on the basis that the Subject Premises was vacant, the Tenant was deceased, and there were no family members entitled to or claiming succession (P's Ex K). Petitioner filed said application as a prerequisite to deregulating the unit from loft law coverage. On December 9, 2015, Respondent advised Petitioner's counsel that they had taken

physical possession of the Subject Premises and changed the locks. Respondent asserted that Petitioner had no right to possession and offered to hold the property in the Subject Premises for thirty days and to allow Petitioner access for the removal of same (P's Ex L). DISCUSSION

The court finds that there are no contested issues of material fact reacquiring a hearing and that a determination may be made on the pleadings and papers already submitted [CPLR 409(b)].

Petitioner has no right to ongoing possession of the Subject Premises. It is undisputed that Petitioner was never in actual possession of the Subject Premises. Petitioner's claim to legal possession of the Subject Premises is based on the mistaken premise that as executor of Tenant's estate, Petitioner has a right to possession for purposes of winding up the affairs of the estate. There was no unexpired leasehold interest to transfer to Petitioner because in the case of a statuary tenancy the tenancy ends upon the death of the tenant [Stern v Equitable Trust Co of New York , 238 NY 267, Ct of Appeals (1924)].

29 RCNY 2-10(f)(2) provides that where an IMD tenant has died and there is no remaining family member entitled to succession the premises is deemed abandoned.

Additionally, Respondent is correct that Petitioner has not moved pursuant to the correct statutory provision to be restored to possession. The applicable provision is RPAPL §713(10).

Even if Petitioner had moved pursuant to the correct statutory provision, Petitioner fails to meet the criteria to make an application under RPAPL 713(10). Respondent did not enter the Subject Premises by force or unlawful means, and Petitioner was not in actual or constructive possession at the time that Respondent changed the locks.

Rather, Petitioner brings this proceeding seeking to be put into possession for the sole purpose of removing Tenant's belongings from the Subject Premises. Petitioner incorrectly asserts standing as a lessee, even though the estate has no leasehold interest. Petitioner appears to be under the mistaken impression that its is Respondent's obligation to continue to store said possessions in the Subject Premises until Petitioner's schedule permits him to get around to [*2]addressing the possessions. This position is reflected in Petitioner's October 5, 2015 email

wherein Petitioner stated in pertinent part:

As to how long I need please keep in mind that my brother had 40 years worth of possessions filling a large loft.

I have an active business to run and I can't drop everything and work full time at the task.

My health issues make it impossible to do any kind of physical labor.

As Administrator it is my duty to minimize the value of the estate not just to dump everything in a rush to vacate.

In this case, where Petitioner was never actually in occupancy, has no colorable right to possession and Respondent used no force to regain possession of the Subject Premises, Petitioner has failed to state a claim for any relief (Almonte v City of New York 106 Misc 2d 376).

Respondent shall have Petitioner's personal property removed from the Subject Premises and put into a storage facility, unless the parties arrive at a different agreement on or before January 31, 2016.

All other stays are hereby vacated and the proceeding is otherwise dismissed.

This constitutes the decision and order of the Court.

Dated: New York, New York

January 6, 2016


Sabrina B. Kraus, JHC

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