Ginberger v Neuwirth (2007 NY Slip Op 51540(U))

Ginberger v Neuwirth

2007 NY Slip Op 51540(U) [16 Misc 3d 1122(A)]

Decided on August 13, 2007

Civil Court Of The City Of New York, Kings County

Kraus, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected in part through August 17, 2007; it will not be published in the printed Official Reports.

This summary holdover proceeding was commenced by Abraham and Rosalyn Ginberger (hereinafter "Petitioners") seeking to recover possession of the basement apartment at 1431 53rd Street, Brooklyn, New York, 11219 (hereinafter "subject premises") based on the allegation that the subject premises is an illegal apartment in a two family home. On the first return date, Reuven Neuwirth (hereinafter "Respondent") appeared pro se and raised the issue of lack of notice of the proceeding, and the Petitioner's intention to terminate the Respondent's tenancy, and improper service of the Notice of petition and petition in this matter. The Court set the matter down for a hearing on August 13th, 2007 on the issue of traverse and the lack of a predicate notice prior to the commencement of this summary proceeding.

MUST PETITIONER SERVE A PREDICATE NOTICE PRIOR TO THE COMMENCEMENT OF A SUMMARY PROCEEDING WHEN SEEKING TO RECOVER POSSESSION OF AN ILLEGAL APARTMENT?

On the first date this proceeding was on the calendar, Respondent appeared in Court and stated that the only paper he had been served with regarding this proceeding was a post card mailed from the Court. The post card was post marked July 26th, 2007 and respondent stated that he found it under his door when he came home on the evening of August 7th, 2007, the night before the first return date in this proceeding. Respondent also stated that any mail addressed to him at the subject premises would first be delivered to Petitioners and that Petitioners would then have to give him the mail.

Respondent also stated that he had lived in the premises since 1999, that he had paid rent to Petitioners on a monthly basis, and that there was no written lease agreement between the parties. These facts are not disputed by the Petitioners.

In response to the Court's inquiry about the lack of a predicate notice in this matter, Counsel for Petitioners argued that because the premises rented was an illegal apartment, the oral [*2]agreement establishing a month-to- month tenancy was invalid as a matter of law, and that therefor no predicate notice was required prior to the commencement of a summary proceeding to recover the premises.

The sole authority Petitioners rely upon for said argument is a decision from Supreme Court, Kings County concerning an ejectment action, O'Connor v. Gallier, 7 Misc 3d 1016(A) (2005). Indeed paragraph "4" of the underlying Petition in this proceeding, alleges that because the underlying agreement was void as a matter of law, under O'Connor there is no need for the service of a termination notice prior to the commencement of this proceeding.

In O'Connor the landlord served the tenant with a written thirty day notice to vacate the premises, prior to the commencement of an action for ejectment in Supreme Court under Article 6 of the RPAPL. While the Court held, in dicta, that no such notice was required as a predicate for the ejectement action, the Court also noted that in a summary proceeding § 232-a of the Real Property Law requires the service of a predicate notice prior to the commencement of the proceeding. Therefor, Petitioners' reliance on O'Connor is misplaced.

In fact, Appellate Law in the Second Department holds that in circumstances, such as the case at bar, where there is no fixed and definite term for the tenancy, whether the landlord commences an action for ejectment or a summary proceeding, there must be some written notice ending the tenancy and demanding surrender of the premises. Alleyne v. Townsley, 110 AD2d 674 (2nd Dept., 1985); Gerolemou v. Soliz, 184 Misc 2d 579 (App. Term, 2nd Dept., 2000).

It is well established that absent a written agreement, the offer and acceptance of rent will create a month to month tenancy. Real Property Law §232-c. Pursuant to Real Property Law §232-a the landlord may not commence a proceeding to recover possession of the premises, without serving the tenant with a thirty day notice in writing advising the tenant that the landlord has elected to terminate the tenancy, and that unless the tenant removes from the premises at the end of said thirty day period a summary proceeding would be commenced against the tenant.

Petitioners argue that there is no month to month tenancy because the apartment is illegal. However, the only interest Petitioners are alleged to have in the premises or in relation to respondent is that of "Landlord". § 721 of the RPAPL establishes the persons entitled to maintain a summary proceeding. If the illegality of the premises means that Respondent is not a month to month tenant, as Petitioners argue, then it must also mean that the Petitioners are neither his landlord or lessor. If Petitioners are not proceeding under § 721(1) of the RPAPL, there would appear to be no other provision of §721 under which Petitioners could maintain this proceeding.

The petition does not state any interest Petitioners have in the premises other than that they are "the landlord of the above captioned premises". This description appears at odds with Petitioners' theory of the case. Moreover, the petition does not indicate under which provision of the RPAPL the Petitioners are entitled to maintain this proceeding, and be awarded a judgment of possession as against this Respondent.

Based on the foregoing, the Court holds that this proceeding must be dismissed as no predicate notice was served prior to the commencement of this summary proceeding.. As such there is no need to reach the issue of whether or not service of the petition was proper in this [*3]proceeding.^[FN1]