Gilkes v Blair

[*1] Gilkes v Blair 2022 NY Slip Op 51025(U) Decided on June 23, 2022 Civil Court Of The City Of New York, Bronx County Ibrahim, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 23, 2022
Civil Court of the City of New York, Bronx County

John Gilkes, Petitioner,

against

Peter Blair, "JOHN DOE" & "JANE DOE," Respondent(s).



L& T Index No. 305014-2022


Petitioner was represented by: Novick & Kaner, P.C.

Respondent was represented by: Karen A. Takach, Esq.
Shorab Ibrahim, J.

RECITATION, AS REQUIRED BY CPLR 2219(A), OF THE PAPERS CONSIDERED IN THE REVIEW OF THIS MOTION BY THE RESPONDENTS: NYSCEF Documents No. 6 through 10, 12.

UPON THE FOREGOING CITED PAPERS, THE DECISION/ORDER IN THIS MOTION IS AS FOLLOWS: RELEVANT FACTS & PROCEDURAL POSTURE

This is a holdover proceeding based on the allegation that the occupants of the subject rent stabilized apartment are squatters who took possession after the tenant of record died. (see NYSCEF Doc. 1 at p. 1, par. 3 and p. 4). Respondents, however, claim they are the adult children of the deceased tenant of record who have resided at the premises for years.

Although the predicate notice and the petition both claim the deceased tenant of record's lease had expired, petitioner concedes it remains in effect through June 30, 2022.

Respondents argue dismissal is required where, as here, a rent stabilized lease has not expired, and petitioner fails to name the estate of the deceased tenant of record.

Petitioner's response, in a bit of circular reasoning, is that the respondents have no right to occupy the premises.

DISCUSSION

Petitioner may ultimately be proven right that respondents have no right to occupy the premises, (see e.g. E.B.D. Associates v Haldeman, 2002 WL 1059723, 2002 NY Slip Op 50199(U) [App Term, 1st Dept 2002] (occupants who enter into possession subsequent to the death of the deceased tenant have no independent possessory interest)), and respondents will similarly have the opportunity to prove they are entitled to remain in possession as successor tenants. However, these determinations must await another proceeding as this case must be dismissed.

Generally, when a tenant or record dies and the lease has expired, a landlord may proceed directly against those persons in possession. (see Jane St. Co. v Suttoni, 1996 NY Misc. LEXIS 641 [App Term, 1st Dept 1996]). However, it is settled law that upon the death of a tenant of record, an unexpired lease does not terminate. Rather, it becomes property of the tenant of record's estate. (see Westway Plaza Associates v Doe, 179 AD2d 408, 409, 578 NYS2d 166 [1st [*2]Dept 1992]).

A landlord, it must be noted, has options: wait until the lease expires or name and serve the estate.

Here, petitioner did not wait for the lease to expire and did not name the estate. The lack of a known estate representative is no excuse since petitioner could have petitioned Surrogate's Court to name one. (see100 West 72nd Street Associates v Murphy, 144 Misc 2d 1036, 1040, 545 NYS2d 901 [Civ Ct, New York County 1989]; Westway Plaza Associates v Doe, 179 AD2d at 409-410)).

Under the circumstances present here, the failure to name the estate is fatal. (see Westway Plaza Associates v Doe, 179 AD2d at 409-410).

The fact that petitioner claims the respondents are squatters does not change the outcome. Even if true, petitioner must still identify an estate and notify it that removal of those persons is required. Petitioner may then, if he so chooses, terminate the lease [i.e. for violating a substantial obligation of the tenancy]. (see 167 West 80th Street LLC v Yoder, 30 Misc 3d 129(A), 1, 2010 NY Slip Op 52291(U) [App Term, 1st Dept 2010]; Westway Plaza Associates v Doe, 179 AD2d at 409 ("landlord failed to join tenant of record's estate and failed to serve any notice to cure an alleged breach of a substantial obligation of tenancy by virtue of occupation by an alleged unauthorized person, followed by a notice of termination of the lease on account of such breach"). In any event, petitioner does not cite to any authority holding that a squatter cause of action allows a landlord to dispense with naming the estate.

The plain language of the RPAPL further illustrates the point. RPAPL § 713(3) allows a special proceeding to be brought when someone "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." [emphasis added]. RPAPL § 721(6) states who may "maintain" such a proceeding—"[t]he person lawfully entitled to the possession of property intruded into or squatted upon." [emphasis added). As there is an unexpired lease, petitioner is not lawfully entitled to possession.

The court notes that petitioner freely acknowledges that an unexpired lease becomes the estate's property. (see NYSCEF Doc. 9 at par. 6 ["In the absence of a specific bequest the unexpired term of a lease goes to the executor of the deceased lessee"] and petitioner's Memorandum of Law ["However, when a tenant dies, the unexpired portion of the lease becomes the personal property of his estate... If an executor or administrator is appointed he controls the occupancy of the premises."]).

Based on the above, respondents' motion is granted. Judgment shall enter in their favor dismissing the petition.[FN1]

This constitutes the decision and order of the court. A copy will be posted on NYSCEF.

SO ORDERED,

June 23, 2022,
Bronx, New York
Shorab Ibrahim, JHC Footnotes

Footnote 1:The court need not reach respondents' other arguments in favor of dismissal.