Petitioners John Muzio and Theresa Muzio have commenced this nonpayment proceeding against respondents Joseph Rogers and Irene Rogers to recover rent of $10,800.00 concerning 15 July Avenue, Bayville, New York for the period of November 2004 through June 2005.

Petitioners contend that they are the owners of 15 July Avenue, Bayville, New York, Section 28, Block 4, Lots 7, 8, 9 and 10. Respondents contend that the proceeding should be dismissed because the petitioners are not the true owners and that the real owner is Florence Risman, who acquired ownership through a deed executed by Maria Alfano-Hardy as Treasurer of the Village of Bayville on May 5, 2004. The May 5, 2004 deed states that the property was sold due to nonpayment of taxes.

Maria Alfano-Hardy, who serves as the Administrator and Treasurer of Bayville, testified that ownership of the property was sold due to nonpayment of taxes for the year 2000/2001 by petitioners. The original deed transferring ownership of the property mistakenly referred to the property as Section 6, Block 4, Lot 15. A correction deed was executed by Bayville on May 25, 2004 to reflect the proper section, block and lot number for the property as Section 28, Block 4, Lot 7, instead of Lot 15 written in the original deed. Maria Alfano-Hardy further testified that the use of the designation Lot 7 referred to the entire property which consists of Lots 7, 8, 9 and 10. Ms. Alfano-Hardy stated that the entire property of 15 July Avenue, consisting of Lot 7, 8, 9 and 10, was transferred by the original deed.

According to Ms. Alfano-Hardy, a second correction deed was executed on June 1, 2005. This second correction deed was executed because another party, who was foreclosing on an adjacent property of petitioners, wanted a clear designation of what lots were conveyed by the tax sale. The June 1, 2005 correction deed states in part:

School District 6, Section 28, Block 4, Lots 7, 8, 9 and 10 on the Nassau County [*2]Land and Tax Map (a/k/a and identified on the Incorporated Village of Bayville tax and assessment records as School District 6, Section 28, Block 4, Lot 7 a/k/a 15 July Avenue, Bayville, NY).

This Correction Deed corrects the deed dated May 25, 2004, and recorded on May 28, 2005 in Liber 11787, Page 301 that identified the property as only lot 7 on the Nassau County Land and Tax Map.

This Correction Deed also corrects the deed dated May 5, 2004, and recorded on May 17, 2004 in Liber 11781, Page 991 that should not have conveyed Lot 15 of School District 6, Section 28, Block 4 on the Nassau County Land and Tax Map, and this Correction Deed will be indexed also against that Lot 15 to correct its chain of title.

Petitioner claim that the tax sale only transferred Lot 7 which is a vacant piece of land covered by grass. Petitioners claim that the house rented to respondents is situated on Lots 9 and 10 and was not consequently included in the tax sale.

The Court rejects petitioners claims that they continued to own the property at 15 July Avenue. The evidence demonstrates that the entire property was transferred to Florence Risman due to the tax sale. The recorded deeds are proof of ownership that title to 15 July Avenue was properly transferred. Real Property Law Section 291; Byer v. Hippolite, 2003 WL 1873745 (NY Dist Ct 2003).

Petitioner offered no evidence to show that they paid taxes for 15 July Avenue. The evidence demonstrates that petitioners were divested of ownership of 15 July Avenue by the original deed as of May 5, 2004, and thereafter. Therefore, petitioners have no right to collect rent from respondents for the period of November 1, 2004, onward. See, Ryan v. P.S. And More, Inc., 6/29/99, p. 28 col 5 (App term, 9th & 10th Jud Dists) wherein the court dismissed the nonpayment petition because the petitioner lost the property due to nonpayment of taxes.

In Landlord & Tenant Practice in New York, Finkelstein & Ferrara, §14:326, the following appears:

A "landlord-tenant" relationship between the parties must exist in order for the nonpayment proceeding to be successfully maintained. If such a relationship is lacking, the respondent may immediately move to dismiss the Petition on that ground or preserve the objection as a defense in the Answer.

In Rasch's Landlord & Tenant, Fourth Edition, Hon. Robert F. Dolan, Section 39:4, Judge Dolan writes:

Summary proceedings cannot be maintained by a landlord of leased premises after he has parted with title to the premises. The relationship of landlord and tenant between the landlord-grantor and the existing tenant is destroyed by the conveyance.

In the case at bar, petitioners, who have parted with title (whether voluntarily or involuntarily) cannot maintain this proceeding.

Petitioners' claim for rent is dismissed with prejudice because they had no ownership interest as of May 5, 2004, and onward.

The foregoing constitutes the Decision and Order of this Court.

So Ordered:

DISTRICT COURT JUDGE

Dated: August 1, 2005

CC:Arthur V. Graseck, Jr., Esq.

John E. Lander, Esq.