Bucko v Hornquist

[*1] Bucko v Hornquist 2023 NY Slip Op 50985(U) Decided on September 14, 2023 Justice Court Of The Town Of Cambria, Niagara County Jowdy III, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 14, 2023
Justice Court of the Town of Cambria, Niagara County

David Bucko and Joanne Bucko, Petitioners,

against

Jason Hornquist, Respondent.



Docket No. 23060012


David J. Mansour
Attorney for Petitioners

Jason Hornquist
Respondent appearing pro se Amel S. Jowdy III, J.

The Petitioners having initiated summary eviction proceedings in this Court against the Respondent pursuant to Article 7 of the Real Property Actions and Proceedings Law (RPAPL) praying for an eviction warrant and Petitioners having appeared before this Court through counsel and in person and Respondent appearing pro se; and this court having carefully considered the pleadings in this action as well as the testimony given and the oral arguments of counsel for Petitioners; for the reasons that follow, the court finds that it lacks jurisdiction to preside over this action.

Facts

The Court on July 18, 2023 heard testimony from the Petitioners that they are husband and wife, with the wife being the mother and husband being the step-father of the Respondent (adult son) and have commenced this proceeding for the removal of the Respondent from premises commonly known as 5894 Shawnee Road, Sanborn New York, the matrimonial residential house, which is within the Town of Cambria. The petition was personally served upon the Respondent. Respondent has appeared pro se. Petitioners freely admit that no written or oral rental contract or lease exists between the parties. This was merely a "family relationship" that was brought about by the marriage of the Petitioners. An additional post hearing oral argument was heard from Petitioners' counsel on August 22, 2023.

Statute

Evictions are controlled by Article 7 of the Real Property Actions and Proceedings Act. [*2]Section 711 requires that an eviction shall only be maintained between a landlord and tenant unless one of the eleven exceptions in Section 713 are meant. Here, Petitioners failed to meet their burden of proof to establish that a landlord tenant relationship existed between the parties nor did they plead any exceptions thereto.

Jurisdictional Defects

As a summary proceeding commenced pursuant to RPAPL Article 7 is a purely statutory creature, "there must be strict compliance with the statutory requirements to give the court jurisdiction." Riverside Syndicate, Inc., v. Saltzman, et al., 49 AD3d 402 (1st Dep't 2008); accord King v. CEL, Inc., 252 AD2d 773, 774 (3d Dep't 1998); Calvi v. Knutson, 195 AD2d 828, 830 (3d Dep't 1993); MSG Pomp Corporation v. Baez, 185 AD2d 798, 799-800 (1st Dep't 1992); Perrotta v. Western Regional Off-Track Betting Corp., 98 AD2d 1,2 (4th Dep't 1983); Shields, et al., v. Benderson Development Company, Inc., et al., 76 Misc 2d 322, 323 (Monroe Co. Ct.1973); BMG Enterprise, Inc., et al., v. Bagdon, 17 Misc 3d 795, 796 (Auburn City Ct 2007); Zenila Realty Corp v. Masterandrea, 123 Misc 2d 1, 6 (Civil Ct. NYC, N.Y.Co.1984). In a very similar case the Hon. Murray Pudalov held that because Petitioner's step-child's right of possession did not rise from any license or agreement but existed because of the marital relationship between mother and step-father no eviction proceeding could stand. (See Nagle v Di Paola 134 Misc 2d 753 ( District Court Nassau County 1987))

Equity

Although town courts were initially recognized under and then created by the New York State Constitution (See NYS Constitution 1777 and NYS Constitution 1821 as amended in 1826), the State Legislature has severely limited our jurisdiction to money, recovery of chattel, summary proceedings and small claims [cf. Sections 201, 202, 204 and 1801 of the Uniform Justice Court Act (UJCA)]. Our town courts simply have no equitable power or authority. A limited exception can be found in RPAPL § 743. There, the court is allowed to entertain "any legal or equitable defense or counterclaim. The court may render affirmative judgment for the amount due on the counterclaim." The court still only has monetary equitable jurisdiction and cannot order specific performance of the contract. Vita v Dol-Fan,III,Inc 18 Misc 3d 30, 852 NYS 2d 589 (2d Dept- 2007). But even the authority of Section 743 must be based upon the initial determination that the court had jurisdiction under RPAPL § 741 (9). Here it does not.

Remedy

However, the Petitioner is not without a remedy in this matter. The Courts, on innumerable occasions, have held that the proper remedy, in such case, is by ejectment to secure possession. Burkhart v. Tucker, 27 Misc. 724, 59 N.Y.S.711(1899); Babcock v. Dean, 140 Misc. 800, 252 N.Y.S. 419 (1931), and cases therein cited. Lawyers Title v Tausig, 149 Misc, 594 268 N.Y.S. 815 (1933); Orange County Development Corp. v. Perez, supra. This court does not have the requisite jurisdiction to entertain such a proceeding. It should more properly be commenced in a Superior Court.

Conclusion

As the Court lacks jurisdiction, the Petitioners' Notice of Petition and Petition seeking possession of the premises in question are hereby dismissed.

Dated: September 14, 2023
Hon. Amel S. Jowdy III
Cambria Town Justice