Appeal from (1) a final judgment of the Justice Court of the Town of Clarkstown, Rockland County (Craig E. Johns, J.), entered June 1, 2006, and (2) an order of said court, dated August 8, 2006. The final judgment, entered upon an order of the same court dated May 18, 2006 granting petitioner's motion for summary judgment, awarded possession to petitioner in a summary proceeding brought pursuant to RPAPL 713 (11). The order dated August 8, 2006 denied occupant's motion to fix an undertaking pending appeal.

Final judgment reversed without costs, order dated May 18, 2006 vacated and petitioner's motion for summary judgment denied.

Appeal from order dated August 8, 2006 dismissed as academic.

In this proceeding brought pursuant to RPAPL 713 (11), petitioner seeks to evict occupant, who was, at least at the time the proceeding was commenced, a nun, from her room in petitioner's convent. Petitioner alleges that occupant is an "employee" and that her "employment" was terminated. Occupant denies that she is an employee and claims that she was granted refuge from political and religious persecution in the former Soviet Union and rightfully assigned to petitioner's convent and that she is entitled to reside in a convent of the Russian Orthodox Church. In support of a motion for summary judgment, petitioner submitted an affirmation by its counsel claiming that occupant is an employee because she receives a stipend of $50 per month and has certain specified responsibilities within the convent.

In our view, petitioner did not, on its motion for summary judgment, meet its burden of showing that occupant is an employee subject to eviction in an RPAPL
713 (11) proceeding. RPAPL 713 (11) allows for the maintenance of a summary proceeding where "the person in possession entered into possession as an incident to employment by petitioner . . . ." Under New York law, a person occupies a premises as an employee where the occupancy is for the benefit of the employer and is connected with the employment, or is [*2]required by the employer for the better performance of the employment (Kerrains v People, 60 NY 221 [1875]). Here, the only evidentiary submission in support of petitioner's motion for summary judgment was the verified petition. While, pursuant to CPLR 105 (u), a verified pleading may be used as an affidavit, here, the verified petition merely alleged in a conclusory manner that occupant was an employee and did not set forth facts sufficient to show, as a matter of law, that occupant entered into occupancy in the convent as an employee, that is, for the benefit of petitioner and in connection with employment, or that occupancy was required by petitioner for the better performance of the employment. Thus, petitioner's motion for summary judgment should have been denied.

In view of the foregoing, we do not reach the issue of whether the relationship between petitioner and occupant was one of employer-employee.

Rudolph, P.J., LaCava and Scheinkman, JJ., concur.
Decision Date: December 13, 2007