Respondent moves to dismiss Petitioner's summary proceedings on the grounds that Petitioner lacks standing to evict Respondent from Rick's Marine Corporation located at 71 E. Bedell Street, Freeport, NY

Petitioner alleges in the non-payment petition that Respondents are liable for $44,000.00 due through January 1, 2007, based upon a ". . . certain lease agreement made on or about January 1, 1999 between Respondents and Landlord, wherein Respondents promise to pay Landlord as rent the sum of $12,000.00 per year, in equal monthly installments of $1,000.00 in advance on the first day of each month."

The lease agreement entered into between Petitioner Robert S. Dillworth and Respondents Richard S. Dillworth and Rick's Marine Corp., attached to the petition, demonstrates that it was executed January 1, 1999, terminates on December 31, 2009, and has a yearly rent of $12,000.00.

The affidavit of Respondent Richard S. Dillworth, dated July 25, 2007, states that he is both [*2]President and the sole shareholder of Rick's Marine Corporation, which is the co-Respondent.

Respondents attach two certified deeds to the moving papers. The first deed is dated May 12, 1998, and demonstrates a conveyance of the said property from Mattie L. Johnson to Respondent Richard S. Dillworth. The second deed is dated August 11, 2003, which shows a conveyance from Respondent Richard S. Dillworth to co-Respondent Rick's Marine Corporation. Based upon the foregoing, Respondent Richard S. Dillworth contends that Petitioner lacks standing to bring this summary proceeding as required by RPAPL Sec. 721, because he has no ownership interest. See also, Index Const. Corp. v. City of New York, 103 Misc 2d 16, 425, NYS2d 249.

In opposition, Petitioner admits in paragraph 9 of his answering affirmation that he does not question Respondent's title to the property:

"That your affiant does not dispute, nor is there any issue, as to the respondents' title to the questioned property."

However, Petitioner refers to the said lease (described above) for which he claims that he paid $175,000.00 for the lease. Also attached is a check in the sum of $175,000.00, dated January 1, 1999 (the day on the check is difficult to determine) from Petitioner Robert S. Dillworth, Esq., drawn to his son Respondent Richard S. Dillworth, which Petitioner claims that Respondent cashed. On the face of the check, there appears the notation "Purchase Freeport Property."

Respondent Richard S. Dillworth denies executing the said lease in paragraph 7 of his moving papers:

"As the certified deeds indicate, I have had uninterrupted, and undivided, legal title to the subject premises since May 12, 1998. While the Petition alleges that I agreed to lease the subject premises from the Petitioner beginning January 1999, this is patently untrue. I never executed a lease with respect to the subject premises, and I certainly never paid any rent to the Petitioner or anyone else, with respect to the subject premises. The allegations to the contrary, and the purported lease in support of said allegations are fictitious."

Should this Court retain jurisdiction over this case or should these matters be resolved in the Supreme Court?

The Hon. Robert F. Dolan writes in Rasch's Landlord & Tenant, Sec. 43:20 that inferior courts such as the District Court are required to dismiss summary proceedings where questions of title must be resolved.

"Summary proceedings are generally brought in inferior courts of limited jurisdiction which, as a general rule, are required by the provisions of their respective codes of procedure to dismiss an [*3]action in which a question of title to real property is involved. It is well settled, however, that these inferior courts are not ousted of jurisdiction of summary proceedings because the question of title may be raised therein by a tenant's denial of his landlord's title; for a summary proceeding is not an action but a special proceeding. Moreover, the real issue in the proceeding is the present right to possession; the question of title is only collaterally involved."

As the above quote indicates, the District Court has the authority to determine questions involving possession even though title in the petition is denied by the Landlord. This Court has previously ruled that the District Court has the authority to rule on possession even though title is raised as a defense to the summary proceeding. See Byer v. Hippolite, 2003 WL 1873745, 2003 NY Slip Op 50611 (NY Dist Ct, 2003) holding that possession could be determined by the District Court even though title is raised as a defense.

However, due to the complex nature of the issues raised in this case, this Court declines jurisdiction because the issue of title is so interwoven with possession that the Supreme Court, which has jurisdiction to determine these matters, is best able to resolve the legal issues raised herein. Questions as to title are litigated in actions and not in summary proceedings. See O'Frias v. Melton, 32 AD2d 1046, 303 NYS2d 785 (2nd Dept 1969).

This summary proceeding is dismissed without prejudice for the purpose of allowing Petitioner and Respondent to have all matters settled by the New York State Supreme Court which has jurisdiction to determine title.

So Ordered:

/s/

DISTRICT COURT JUDGE

Dated:September 7, 2007

CC:Ezratty, Ezratty & Levine, LLP

Robert S. Dillworth, Esq.

SF/mp