Petitioner Freewave Media brought a holdover proceeding against Respondent-Tenants Alex and Rosa Smith of 71 Carman Ave., East Meadow NY returnable on September 18, 2009 seeking a judgment of possession with a warrant with no stay and a money judgment in the amount of $6,000.00 plus interest, late fees, costs and disbursements.

At the initial hearing on September 18, 2009 Lewis Kesten appeared pro se representing Petitioner and stated on the record "I own Freewave Media." When asked if Freewave was a corporation, Mr. Kesten stated "No Sir, it's not."

The proceeding was adjourned to grant Respondents time to hire an attorney. On the adjourned to date of October 8, 2009 Respondents did not appear and Petitioner was awarded a default judgment of possession with no stay on the warrant, and a money judgment in the amount of $6,000.00.

Respondents filed an order to show cause on February 9, 2010 alleging they were not notified of the appearance date and they were not sure whether Mr. Kesten was the owner of the subject premises. The Clerk did notify Respondent of the October 8 2009 appearance via postal [*2]mail. However, Respondents claim that Petitioner informed them the return date was in November.

The proceeding was restored to the calendar and at the March 10, 2010 proceedings, Mr. Kesten again appeared pro se representing Petitioner and swore that he owned Freewave Media and that it is not a corporation:

The Court: No, no. I wondering, is Freewave Media a corporation?

Mr. Kesten: No, sir, it's not. We appeared before you - -

The Court: Is it an LLC?

Mr. Kesten: No. Just doing business as. It's my company. You had given us a judgment against Mr. Smith and a warrant of eviction.

Petitioner subsequently retained counsel and filed opposition papers to Respondents' order to show cause and filed a motion to grant an additional judgment of $21,000.00 for rent accruing from September 1, 2009 through March 2010. Respondents filed a reply and opposed Petitioner's motion on April 9, 2010.

The question that arises from the order to show cause is whether Lewis Kesten and Freewave Media are the owners/landlords or lessors of the subject premises as required by RPAPL § 721 in order to maintain this proceeding. Mr. Kesten alleges in his petition dated August 24 2009 that Freewave Media is the owner and landlord of 71 Carman Avenue East Meadow. Lewis Kesten swears in his affidavit dated March 23 2010, submitted in support of Petitioner's motion "that he is the Petitioner/Landlord in the within proceeding."

Respondents have submitted to the Court three documents to establish that Freewave Media, Inc. (a corporation) is the owner and landlord of the subject premises, not Lewis Kesten doing business as Freewave Media. Respondents also allege that Mr. Kesten perjured himself by stating under oath that Freewave Media is not a corporation.

1. The first document submitted is a May 31, 2007 deed for the subject premises in the name of Freewave Media, Inc. certified by the Nassau County Clerk. (Exhibit A, Reply Affirmation)

2. The second document is a September 18, 2008 holdover petition that Freewave Media, Inc. filed against Alex and Rosa Smith concerning the same property, in which Lewis Kesten verified the petition as an authorized agent of the corporation. (Exhibit B, Reply Affirmation)

3. The third document is a motion Lewis Kesten filed in Suffolk County Supreme Court on November 20, 2009 regarding index number 09-23883. In the motion, Mr. Kesten acknowledges the deed dated May 31, 2007 by which Freewave Media, Inc. became owner of the subject property as the "true deed". (Unlabeled attachment to Reply Affirmation)

Respondents' request for sanctions against Lewis Kesten is granted to the extent that a hearing will be conducted pursuant to Rule 130-1 of the Rules of Chief Administrator to determine what costs and sanctions should be awarded because Mr. Kesten represented to the Court, under oath on September 18, 2009 and March 10, 2010 that Freewave Media is not a corporation. Yet between those two appearances on November 20, 2009 he acknowledged to the Suffolk County Supreme Court that Freewave Media is a corporation and the owner of the subject premises located at 71 Carman Ave., East Meadow. At the hearing, Mr. Kesten must produce evidence to establish what type of entity Freewave Media is.

Based upon the above evidence, including Mr. Kesten's acknowledgment that Freewave Media, Inc. is the owner of the subject premises, the Petitioner as named (Freewave Media) is not a proper party who may maintain this proceeding under RPAPL § 721. See Muzio v Rogers (20 Misc 3d 143[A], 2008 WL 3874712, [App Term 9th & 10th Jud Dists, 2009]) and Durand v Simmons (16 Misc 3d 133[A], 847 NYS2d 896 [App Term 9th & 10th Jud Dists, 2007]).

Furthermore, if Petitioner was the proper party, the proceeding would still be dismissed upon the grounds that:

1. The petition failed to show that the notice to terminate the month-to-month tenancy was given in any of the methods prescribed by Real Property Law 232-6. See Sills v. Dellavalle (9 AD3d 561, 780 NYS2d 193 [3rd Dept 2004]) and Witherbee, Sherman & Co. v. Wykes, (159 A.D. 24, 143 N.Y.S. 1067 [3rd Dept 1913]);

2. Freewave Media, Inc., a corporation, failed to appear by attorney on September 18, 2009, October 8, 2009 and March 10, 2010, as required by CPLR § 321(a).

Respondents' order to show cause is granted and the holdover proceeding is dismissed with prejudice as Freewave Media, as named, is not a proper party who may maintain this proceeding under RPAPL § 721 and no landlord-tenant relationship exists between the parties pursuant to RPAPL § 711. The judgment and warrant issued due to Respondents' default on October 8 2009 and hereby vacated.

A hearing is set down for 5/20/2010 at 2:15 P.M. to determine if Mr. Kesten's conduct [*4]warrants costs and sanctions pursuant to Section 130-1 of the Rules of Chief Administrator.

So Ordered:

/s/

DISTRICT COURT JUDGE

Dated:May 5, 2010

CC:Lederman, Abrahams & Lederman, LLP

Steven H. Sewell, P.C.

SF/mp