The Petitioner having initiated summary eviction proceedings in this Court against

the Respondent pursuant to Article 7 of the Real Property Actions and Proceedings Law (RPAPL) praying for an eviction warrant and Petitioner having appeared before this Court through counsel and Respondent likewise appearing through counsel; and this court having carefully considered the pleadings in this action as well as oral argument and written submissions from both parties; for the reasons that follow, the court finds that it lacks jurisdiction to preside over this action.

Procedural History

The Petitioner had commenced two previous eviction proceedings under docket

numbers 07080271 in 2007 and 10070349 in 2010. The 2007 action was stayed by order of this court and the 2010 action was withdrawn. The present action requests removal, of Respondent, who is alleged to be a hold over tenant after Petitioner purchase Respondent's property on a foreclosure proceeding. Respondent asserts he is a vendee in possession by way of a purchase contract with Petitioner for 7074 Dysinger Road, Lockport New York. Respondent has paid $47,000.00 towards the purchase price.

Jurisdictional Defects

As a summary proceeding commenced pursuant to RPAPL Article 7 is a

purely statutory creature, "there must be strict compliance with the statutory

requirements to give the court jurisdiction." Riverside Syndicate, Inc., v. Saltzman,

et al., 49 AD3d 402 (1st Dep't 2008); accord King v. CEL, Inc., 252 AD2d [*2]

773, 774 (3d Dep't 1998); Calvi v. Knutson, 195 AD2d 828, 830 (3d Dep't 1993); MSG Pomp Corporation v. Baez, 185 AD2d 798, 799-800 (1st Dep't 1992); Perrotta v. Western Regional Off-Track Betting Corp., 98 AD2d 1,2 (4th Dep't 1983); Shields, et al., v. Benderson Development Company, Inc., et al., 76 Misc 2d 322, 323 (Monroe Co. Ct.1973); BMG Enterprise, Inc., et al., v. Bagdon, 17 Misc 3d 795, 796 (Auburn City Ct 2007); Zenila Realty Corp v. Masterandrea, 123 Misc 2d 1, 6 (Civil Ct. NYC, N.Y.Co.1984).

Service of Petition

It is clear to the Court that the petition herein was served on Respondent's counsel

from the previous action (Docket # 10070349) but not on Respondent himself. There is no discernible proof of service of the Petition via an affidavit ever filed with the court as required by § 735 (2) RPAPL

Defects in Pleadings

The petition itself is signed by Petitioner's attorney and unverified. While the Civil Practice Law and Rules (CPLR) may allow this [cf. CPLR § 3020(b)(3)] the Real Property Action and Proceeding Law does not [cf. RPAPL§§ 721 and 741; see also Ferro v. Lawrence 195 Misc 2d 529 (2d Dept 2002); Key Bank of NY v. Becker 88 NY2d 899 (1996)].

Section 713 (9) RPAPL

It is clear no landlord-tenant relationship exists between the parties and the Court's

jurisdiction can only be trigger by the special proceeding exceptions under Section 713 RPAPL. The only factual application of the pleadings call into play subsection 9.

RPAPL Section 713 [9] requires that the performance of the contract of sale must be completed within ninety days after its execution. Although the initial written purchase contract in this matter was to be completed within ninety days [i.e. January 28, 2008 to March 10, 2008], the purchase contract was orally modified by the Petitioner. Such oral modifications resulted in the extension of the closing date [*3]beyond the ninety day period and further resulted in additional down payments. Therefore, no proceeding pursuant to RPAPL Section 713 [9] can be commenced in these matters [Orange County Development Corp. v. Perez, 67 Misc 2d 980 (1971); Barbarita v. Shilling, 111 AD2d 200 (2d Dept. 1985); Jacobs v. Andolina, 123 AD2d 835, (2d Dept. 1986); Sid Farber Hempstead Corporation v. Buckley, 65 Misc 2d 237 (1970) ]

Equity

Although town courts were initially recognized under and then created by the New

York State Constitution (See NYS Constitution 1777 and NYS Constitution 1821 as

amended in 1826), the State Legislature has severely limited our jurisdiction to money,

recovery of chattel, summary proceedings and small claims [cf. Sections 201, 202, 204

and 1801 of the Uniform Justice Court Act (UJCA)]. Our town courts simply have no

equitable power or authority. A limited exception can be found in RPAPL § 743. There,

the court is allowed to entertain "any legal or equitable defense or counterclaim. The

court may render affirmative judgment for the amount due on the counterclaim." The

court still only has monetary equitable jurisdiction and cannot order specific performance

of the contract. Vita v Dol-Fan,III,Inc 18 Misc 3d 30, 852 NYS 2d 589 (2d Dept- 2007).

But even the authority of Section 743 must be based upon the initial determination that

the court had jurisdiction under RPAPL § 741 (9). Here it does not.

However, the Petitioner is not without a remedy in this matter. The Courts, on

innumerable occasions, have held that the proper remedy, in such case, is by ejectment or

a foreclosure of the contract to secure possession. Burkhart v. Tucker, 27 Misc. 724, 59

[*4]N.Y.S.711(1899); Babcock v. Dean, 140 Misc. 800, 252 N.Y.S. 419 (1931), and cases

therein cited. Lawyers Title v Tausig, 149 Misc, 594 268 N.Y.S. 815 (1933); Orange

County Development Corp. v. Perez, supra. This court does not have the requisite

jurisdiction to entertain such a proceeding. It should more properly be commenced in

Supreme Court.

Conclusion

As the Court lacks jurisdiction, the Petitioner's Notice of Petition and Petition

seeking possession of the premises in question are hereby dismissed.

Dated January 27, 2011______________________

Lockport NewYorkLeonard G. Tilney Jr.

Lockport Town Justice