Respondent previously sought an order of this Court, pursuant to CPLR §3211 (a), dismissing the petition on the grounds that this Court "lacks subject matter jurisdiction" and upon the grounds that "any litigation between the parties cannot be determined by this Court in a summary proceeding". (Respondent's Affidavit in Support of Motion to Dismiss).

The petition alleges that respondent Faraldo, began residing in the premises "on or about 1980". The type of proceeding (a non-payment or a holdover) is not specified on the face of the notice of petition or on the face of the petition. The petition states that "it is not known if during the early part of the occupancy period respondent, (Faraldo) paid any nominal rent to petitioner, Anne McKenna, or whether respondent, (Faraldo), simply was residing at the premises as a licensee of petitioner". (Petition No.4). The petition, verified by Laura McKenna and Christine Kessler, (daughters of Anne McKenna), represents that Anne McKenna took title to the premises in 1958, and that in October 21, 2005, she transferred her interest thereto to Laura McKenna and Christine Kessler, as Trustees to the Anne McKenna Irrevocable Trust, while Anne McKenna reserved was given the right by the trust to reside at the premises for her lifetime.

When respondent filed her Motion to Dismiss, her affidavit stated that "on or about 1980, my mother (Anne McKenna), her brother, William Gaudin and I obtained a mortgage in our three names and all three names were recorded on the deed". A copy of the deed, dated September 25, 1981, was provided to the Court by the respondent. Same demonstrates the conveyance of property from Anne McKenna to Anne McKenna, Anne Faraldo and William Gaudin. The deed does not state that three owners have any right to survivorship. [*2]

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Based on this offer, it appeared to the Court that respondent Faraldo was presently a property owner. Respondent neglected to apprise the Court of certain further facts: specifically that in 1990 she executed a deed giving her share to Anne McKenna, a critical fact. Accordingly, since respondent filed an answer, in October 2007, the Court advised the parties of the motion submission date of May 1, 2008, that it was electing to treat respondent's motion to dismiss as one for summary judgment and granting a continuance for the parties to supplement their proof.

Subsequent to the Court's May order, petitioner submitted an affirmation in opposition (dated May 27, 2008) which contained a copy of a deed dated April 12, 1990 and recorded August 27, 1990, which transfers Anne Faraldo's interest in the premises to Anne McKenna. Respondent does not contest the validity of this deed or that she holds no current title to the property. Rather, respondent now alleges that "the Court drew an erroneous conclusion from the deed" respondent affixed to her Motion to Dismiss. She now states that she affixed the 1981 deed, in order to rebut petitioner's contention that respondent was a "licensee" on or about 1980". Respondent insists in her affidavit in support of her Motion to Vacate order (affidavit dated June 12, 2008), that she cannot be deemed a licensee because a licensee enters the premises without possessing any interest in the premises. This argument suggests respondent had an ownership interest in the property when she entered it, and although respondent wishes to advance this argument, she also wishes to say the Court misinterpreted her statements. The 1981 deed, giving respondent Faraldo some ownership interest (as of September 25, 1981) does not support the finding that respondent could not have been a licensee when she entered the premises on or about 1990, which the Court construes to be "in the year 1990".

Respondent, absent any legal authority, argues that the Court lacked the authority to convert the motion to one for summary judgment. There is no requirement in CPLR §3211c that it be specifically requested by a party before the court is permitted to treat a CPLR 3211 motion as one for summary judgment, pursuant to CPLR 3212. The Court may elect to treat a motion as one for summary judgment, sua sponte, provided it advises the parties of its intention to make this treatment, "so that the appropriate record. . . may be made by the parties". [See, Mareno v. Kibbe, 32 AD2d 825 (N.Y.A.D. 2nd Dept. 1969), and CPLR §3211 (c) ]. The Court's May 2008 order did apprise the parties its intention to so treat the motion and afforded the parties adequate time to submit any proof reflecting on the case, contrary to respondent's contentions. Respondent urges the Court to determine its initial motion to dismiss, based on alleged defects in the petition. The petitioner requests summary judgment in its favor on the merits. Respondent sought no leave to amend the petition.

While earlier it appeared to the Court, based on the respondent's allegations and proof, that the evidence provided might be sufficient to warrant summary judgment, it is now clear that neither party's papers could support an award of summary judgment. The Court was premature in converting the motion to one for summary judgment. Accordingly, the Court vacates that [*3]portion of its prior order of May 1, 2008, which stated that the Court elects to treat respondent's CPLR §3211 (a) motion as one for summary judgment, pursuant to (CPLR §3212). The Court is not so treating respondent's initial motion as one for summary judgment, and this determination is not on the merits. This Court order is based on respondent's initial Motion to Dismiss.

In this regard, the Court, after reviewing the petition, concludes that the petition does not satisfy the requirements of RPAPL 741, in it does not adequately apprise the respondent or the Court of the facts on which this proceeding is based. The petition seeks relief under RPAPL §711 (which necessitates a landlord-tenant relationship) "and" RPAPL §713

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(licensee, in which there is no landlord-tenant relationship). The facts pled in the petition are inconsistent and represent two alternative theories. The petition pleads facts of both types of proceedings. The Court finds that the petition is defective and dismisses same, and notes that it is not deprived of subject matter jurisdiction by reason of the petition's pleading defects. Birchwood Towers #2 Associates v. Schwartz, 98 AD2d 699 (NY App. Div., 2nd Dept. 1993).

No determination is made as to the date respondent entered the premises, the circumstances of her entry, the current ownership of the premises, the nature of Faraldo's relationship to the petitioners, or whether Gaudin's estate is a necessary party to the proceeding, However, the Court has taken notice of the respondent's repeated contention that her mother does not desire to dispossess her. It is also noted that the petitioners have pled their authority and capacity to evict their sister under the alternative status of "attorneys in fact" for Anne McKenna and as "trustees of the Anne McKenna Irrevocable Trust". As these agency statuses accrued after the respondent lawfully took possession of the premises via grant from her mother, New York law requires that the petitioner's notice of termination must authenticate their authority to act and must be accompanied by proof of the agents authority to act; or same is insufficient to terminate the tenancy. See, Seigel v. Kentucky Fried Chicken of L.I., Inc. 108 AD2d 218 (N.Y.AD 3rd Dept. 1985). Such proof was not provided in this instance, which is also fatal to this petition.

The petition is dismissed based solely on these defects and the failure to satisfy RPAPL §741, not on the merits. Thus this determination is not entitled to res judicata treatment. [*4]

________________________________

J.D.C.

Dated: June 19, 2008

Decision to be published —-yes—-no.

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