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FS 45 Tiemann Place LLC v Gomez Published Decision

By Dov Treiman


FS 45 Tiemann Place LLC v. Gomez
Slip Copy
N.Y.Sup. 2013.

Slip Copy, 2013 WL 400848, 2013 N.Y. Slip Op.
50132(U)

This opinion is uncorrected and will not be published
in the printed Official Reports.

FS 45 Tiemann Place LLC, Petitioner-Landlordv.
Juana Gomez, Respondent-Tenant-Respondent, –
and- “John Doe” and/or “Jane Doe.” Respondents-
Undertenants.
570956/11.

Supreme Court, Appellate Term, First Department

Decided on January 30, 2013

Digest-Index Classification:Landlord and Tenant-
-Rent Regulation–Primary Residence

PRESENT: Torres, J.P., Schoenfeld, Shulman, JJ

Petitioner-landlord appeals from an order of the Civil Court of the City of New York, New York County (Arlene H. Hahn, J.), dated October 26, 2011, which granted the respondents’ joint motion to dismiss the petition in a holdover summary proceeding and denied, as moot, landlord’s cross motion for leave to conduct discovery and for interim use and occupancy.

OPINION OF THE COURT

Per Curiam.
Order (Arlene H. Hahn, J.), dated October 26,2011, reversed, with $10 costs, respondents’ motion denied, petition reinstated, and matter remanded to Civil Court for further proceedings. Respondents’ CPLR 3211 motion to dismiss the holdover petition should have been denied. The single correspondence sent by petitioner-landlord’s agent to tenant’s daughter, respondent Mayuri Gomez – which, at most, acknowledged Mayuri’s indeterminate right of occupancy based on her “recent[ ] move[ ]” into the stabilized apartment premises – did not vitiate the previously and timely served notice of nonrenewal or otherwise require dismissal of landlord’s facially meritorious nonprimary residence claim against tenant. Any occupancy rights Mayuri may have acquired were subordinate to the tenancy rights of her mother, the record tenant (see 170 W. 85th St. Tenants Assn. v Cruz, 173 AD2d 338 [1991]), who never surrendered possession, and who, in fact, interposed an answer disputing the allegations of nonprimary residency.

Nor was dismissal required by the failure to join Mayuri, since she is not a necessary party to the proceeding whose presence is indispensable to providing complete relief as between landlord and tenant (see Triborough Bridge & Tunnel Auth. v Wimpfheimer, 165 Misc 2d 584 [1995]). In any event, Mayuri intervened in this proceeding by filing an answer (seeRPAPL 743).*2

In reinstating the petition, we do not pass upon landlord’s application for discovery and interim use and occupancy, issues not reached below. Our disposition is without prejudice to landlord’s right to renew its application for such relief in Civil Court.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Decision Date: January 30, 2013

Copr. (c) 2013, Secretary of State, State of New
York

N.Y.Sup. 2013.
FS 45 Tiemann Place LLC v Gomez
Slip Copy, 2013 WL 4008482013 WL 400848

Slip Copy
(Table, Text in WESTLAW), Unreported Disposition
(Cite as: Slip Copy)

(Table)(Table, Text in WESTLAW), Unreported
Disposition9992013 N.Y. Slip Op. 50132(U)4603,
2013 WL 4008482013 WL 400848 (Table)(Table,
Text in WESTLAW), Unreported Disposition9992013
N.Y. Slip Op. 50132(U)4603

END OF DOCUMENT

Adam Leitman Bailey, P.C.

NEW YORK REAL ESTATE ATTORNEYS