The following named papers numbered 1 to 5

submitted on this Motion

on December 1, 2010

papers numbered

Notice of Motion and Supporting Documents1Order to Show Cause and Supporting Documents

Opposition to Motion2,5

Reply Papers to Motion3,4

The respondent, Ilene Silverstein ("I. Silverstein"), moves to dismiss the instant landlord tenant proceeding, pursuant to CPLR §3211(a)(7), on the grounds that Norman Fishman ("N. Fishman"), does not have authority to maintain the proceeding on behalf of the corporation and because this proceeding cannot be brought derivatively as a shareholder. The petitioner opposes the respondent's motion in all respects. The respondent filed a Reply.

N. Fishman states, in the Affidavit in Opposition to Motion, that he brought this proceeding on behalf of Gorbrook Associates, Inc. ("Gorbrook"), under his authority as a board member and officer and also derivatively as a shareholder. The petitioners are seeking to recover possession of the premises located at 9 Mitchell Avenue, Plainview, NY. The petitioners are also seeking a money judgment in favor of Gorbrook against [*2]the respondents for use and occupancy from August 1, 2009 to the time of entry of a judgment with interest, costs and disbursements and attorneys' fees.

Since its inception, in 2004, Gorbrook has been in the business of acquiring properties with houses suitable for knockdown and constructing in their place new houses for sale. At present, four people own common stock shares of Gorbrook:

1) N. Fishman;

2) Allen Silverstein ("A. Silverstein");

3) Rita Fishman ("R. Fishman") and

4) Eric Silverstein ("E. Silverstein")

A. Silverstein is I. Silverstein's and E. Silverstein's father. Ted Fishman ("T. Fishman"), who passed away on November 24, 2009, was R. Fishman's husband and N. Fishman's brother. R. Fishman received the shares as the beneficiary of his estate. Robin Silverstein ("R. Silverstein"), who is E. Silverstein's wife, claims to be the actual owner of his shares. I. Silverstein and her husband do not have any interest, ownership or otherwise, in Gorbrook.

N. Fishman states that there are currently two (2) directors on Gorbrook's Board of Directors: A. Silverstein and himself. He is the treasurer and A. Silverstein is the vice-president. T. Fishman was a director and the president of Gorbrook. R. Silverstein states, in an affidavit attached to respondent's motion, that she owns 25% of the shares and that she is a director and the secretary of Gorbrook.

Gorbrook acquired ownership of the subject premises pursuant to a deed recorded on August 23, 2007. The house on the property was to be razed and replaced with a new house. When a contract for the new house was terminated, on or around January 2009, A. Silverstein proposed that Gorbrook sell the existing house to his daughter, I. Silverstein.

The contract of sale was signed by N. Fishman, on behalf of Gorbrook. I. Silverstein states that the contact was signed in the Spring of 2009. She states that she moved into the house in October 2009, with N. Fishman's consent.

N. Fishman states that on or around August 2009, Gorbrook entered into a contract of sale with I. Silverstein. He states that before, or just after the August 2009 execution of the contract, she and her husband took possession of the house. He states that neither Gorbrook nor N. Fishman gave permission or authorization in this regard. He did not become immediately aware that they had taken possession of the premises. N. Fishman states that when he protested, he was told by A. Silverstein that Gorbrook would be compensated for the pre-closing use and occupancy of the [*3]premises at the time of the closing.

N. Fishman states that the contemplated closing date was to be October 31, 2009 and that "time was of the essence." However, the contract of sale states that it was made as of January 18, 2009 and the date for the closing was to take place on or about June 1, 2009. An attached "FHA Purchase Agreement Addendum" was signed by I. Silverstein on August 18, 2009 and signed by N. Fishman, for Gorman Associates, on September 9, 2009.

The closing for the house never occurred and on January 5, 2010, Gorbrook served I. Silverstein with a notice terminating the contract of sale and demanding that she and her husband vacate the premises immediately. They did not vacate the premises and presently continue to reside there.

On or about June 4, 2010, two actions were commenced against Gorbrook, R. Fishman and N. Fishman, in Nassau County Supreme Court: 1) I. Silverstein commenced an action to establish her right to purchase the premises; and 2) A. Silverstein and R. Silverstein commenced a dissolution proceeding. Shortly after these two claims were commenced, Gorbrook and N. Fishman served a Notice to Quit, dated June 22, 2010, requiring I. Silverstein and her husband to vacate the premises no later than July 31, 2010. When they failed to do so, the instant proceeding was commenced by the filing and service of the Notice of Petition and Petition dated August 18, 2010.

The respondent moves to dismiss the proceeding because N. Fishman does not have standing to bring the proceeding on behalf of Gorbrook or derivatively, as a shareholder.

However, the Court must first determine whether a valid cause of action exists based on the facts as presented. CPLR §3211(a)(7), states that "a party may move for judgment dismissing one or more causes of action asserted against him on the ground that the pleading fails to state a cause of action." It is well established that in determining whether to grant a motion pursuant to CPLR §3211(a)(7), the pleading is to be afforded a liberal construction (CPLR §3026) and the court should accept as true the facts alleged in the complaint, accord plaintiff the benefit of every possible inference, and only determine whether the facts, as alleged, fit within any discernible legal theory (Sheila C. v. Povich, 11 AD3d 120 [1st Dept 2004]). The issue is whether the claimants have a cause of action, not whether one has been stated (Rocco v. Town of Smithtown, 229 AD2d 1034 [4th Dept 1996]).

Based on the facts as set forth in the pleadings, the respondent is a contract vendee and no landlord tenant relationship was ever entered into by the parties. As such, RPAPL §713(9) would be the appropriate section under which to bring a summary proceeding. RPAPL §713(9), entitled "Grounds where no landlord tenant relationship exists" states, in pertinent part: [*4]

A special proceeding may be maintained under this article after a ten day notice to quit has been served upon the respondent in the manner prescribed in section 735, upon the following grounds:

(9) A vendee under a contract of sale, the performance of which is to be completed within ninety days after its execution, being in possession of all or a part thereof, and having defaulted in the performance of the terms of the contract of sale, remains in possession without the permission of the vendor (emphasis supplied).

Although N. Fishman states that time was of the essence, the facts, as presented, do not reflect that the parties intended the contract of sale be completed within 90 days. Where the contract does not necessarily have to be completed within a 90 day period, RPAPL §713(9) cannot serve as a basis for a summary proceeding as it must be strictly construed (see Militello v. Chilvas, 12 Misc 3d 1180(A) [Buffalo City Ct 2004]).The instant proceeding would have been more properly brought as an ejectment action in Supreme Court (see Stevens v. Nye, 283 AD 666 [2d Dept 1954]). As such, the petitioner fails to state a cause of action upon which this Court can proceed.

Accordingly, the respondent's motion to dismiss is granted.

So Ordered:

/s/ Hon. Scott Fairgrieve

DISTRICT COURT JUDGE

Dated:February 3, 2011

CC:Michael M. Premisler, Esq.

Litwin & Tierman, P.A.

SF/mp