This action began as a special proceeding by way of a "Non-Payment Petition" following a 3 day notice to pay or quit, pursuant to RPAPL §711 for 1) an award of possession of the property, 2) granting a warrant of eviction to remove the respondent and anyone else residing with the permission of the respondent, 3) a money judgment in favor of the petitioner against the respondent in the amount of $9,600.00 with interest, and 4) an award of costs and disbursements.

According to the petitioner, the respondent gained possession of the above referenced premises as a tenant, at a rental rate of $400.00 per month. The respondent has failed to make his monthly rental payment since February 2004. Despite demands of payment by the petitioner, no payments have been made since that date.

As a result, the respondent is in arrears on his rent to the petitioner in the amount of $9,600.00.

According to the respondent, the parties entered into a real property purchase agreement on or about February 2, 2001 for the sale of the property. It should be noted that besides the petitioner, four other parties were named as sellers on the fully executed contract, including fully executed addenda, which were provided to the court as an "Exhibit A" to the respondent's answer to the petition.

According to the contract the respondent had already deposited $1,000.00 as a down payment with the petitioner, leaving a balance of $17,000.00 due and owing on the agreed upon purchase price of $18,000.00. According to the "Alternative Financing Rider" which was an addendum to the contract, the sellers were to provide the respondent with a $17,000.00 purchase money mortgage at 5% interest, which was to be repaid over a four (4) year period at a rate of $400.00 per month.

While the agreement is silent as to when the respondent was to take possession of the premises, both sides have stated in their respective papers that the respondent was in possession of the premises prior to the initial closing date which was listed as March 15, 2001. It should be noted that this was not a time of the essence transaction.

According to the petitioner, the parties changed their minds on the real estate purchase and the respondent has remained in the premises as a tenant. The petitioner also claims that since the parties have not closed on the real estate deal and the respondent has not provided the sellers with a purchase money note and mortgage as required by the "Alternative Financing Rider" that the respondent has waived any rights that he may have had under the contract, and is in fact in breach of the contract.

The respondent claims that he stopped making payments under the agreement sometime during 2003 as a result of the petitioner's alleged attempts to alter the terms of the agreement for a second time by raising the monthly payments to $600.00 per month. [*2]The petitioner called the additional payments a "buy out." In 2003, the petitioner previously had persuaded the respondent to increase his monthly payment to $500.00 after threatening to lock him out of the premises.

The respondent is seeking 1) that the petition be dismissed, 2) that the original contract should be honored and title transferred to the respondent, and 3) that the petitioner be directed to have a mortgage placed on the premises for the balance owing of $1,600.00.

As much as this Court would like the opportunity to resolve this matter, the relief sought is improper in a summary proceeding and is beyond the subject matter jurisdictional limits of the court. Judiciary Law §190, UCCA §204, compare, NYCCA §203.

While Uniform City Court Act §204 allows the Court to render judgment for rent due without regard to the jurisdictional limits of the Court in a summary proceeding, the petitioner has in fact brought a mortgage foreclosure action under the guise of a holdover petition.

If a purchaser of real property is given the right to take possession of the property prior to the conveyance of title, the conventional relationship of landlord and tenant is not created. Rather, the relation between the parties is that of a vendor and vendee. The same result occurs when an existing tenant enters into a contract of sale for real property with the landlord-owner.

In such cases, the landlord-vendor cannot maintain a summary proceeding against a tenant-vendee unless there is statutory authority or a contractual agreement to do so. This is because the vendee-tenant acquires equitable title in the property upon execution of the contract which can only be extinguished by way of foreclosure. 89 NY Jur 2d, Real Property Possessory Actions § 107-108, Bean v. Walker, 95 AD2D 70, 72 (4th Dept., 1983), Madero v. Henness, 200 AD2d 917, 918 (3rd Dept., 1994), see, Murray v. Breski, 277 AD2d 867, (3rd Dept.,2000), Hornsby v. Christopherson, 160 Misc 2d 78, 79 (1994).

Here, the parties did not specifically reserve in their contract that the landlord-tenant relationship would survive and that the remedy of a summary eviction proceeding would be available to the petitioner if the respondent failed to perform as required under the agreement. Hadlick v. DiGiantommaso, 154 AD2d 338 (2nd Dept., 1989), Lind v. Lind, 203 AD2d 696 (3rd Dept., 1994, lv dismissed, 84 NY2d 803 (1994). That leaves only statutory authority available to the petitioner to serve as a basis for a summary proceeding.

However, the only statutory authority which would allow the petitioner to use an RPAPL Article 7 summary proceeding for the removal of the respondent is RPAPL §713 (9); which allows for the removal of a vendee who has remained in possession of the [*3]premises despite having failed to perform on a contract for sale, the performance of which was to be completed within 90 days.

Here the petitioner has put forth no proof that the contract for sale was to be completed within 90 days. Moreover, where a contract does not provide time for performance and does not necessarily have to be completed within 90-day period, RPAPL §713 (9) cannot serve as a basis for a summary proceeding. Sid Farber Hempstead Corp. v. Buckley, 65 Misc 2d 237, 240-241 (1970), Administrator of Veterans Affairs v. Whyte, 162 Misc 2d 310 (1994).

While the petitioner has many compelling arguments which may ultimately allow her to prevail in this matter, the provisions of RPAPL §713 (9) must be strictly construed in order for the court to acquire jurisdiction in first instance. Sid Farber Hempstead Corp. v. Buckley, 65 Misc 2d 237, 240 (1970).

Here, the presence of a fully executed contract for the sale of real property wherein the purchaser was given possession prior to closing or was a tenant who contracted to purchase the premises from his landlord, bars this court from deciding the matter as a summary proceeding. The matter must be heard as a foreclosure proceeding in either County or Supreme Court.

Additionally, since the respondent has given a sizeable down payment and has made substantial payments in comparison with the total purchase price listed in the contract of sale, he may also be entitled to equitable relief which is not available to him in this court. Call v. LaBrie, 116 AD2d 1034, 1035 (4th Dept., 1986), Gerder Services v. Johnson, 109 Misc 2d 216, 217-218 (1981).

Therefore, the petitioner's holdover petition is dismissed without prejudice to re-file in County or Supreme Court.

This decision constitutes the Order of this Court.

Hon. Thomas P. Franczyk

Buffalo City Court Judge



Entered:April 24, 2006