Petitioners, Gorbrook Associates and Norman Fishman, seek to reargue and renew the motion by Respondent, Ilene Silverstein to dismiss the instant proceeding pursuant to CPLR § 3211(a)(7), based on the claim that the pleading fails to state a cause of action. The Court grants the application to renew/reargue.

On February 3, 2011, this Court granted Respondent's motion to dismiss pursuant to CPLR § 3211(a)(7) for failure to state a cause of action. Petitioner claimed that there was a tenancy at will in paragraph 13 of the petition, while previously in paragraph 11 stating that other owners of Gorbrook, either Allen or Eric Silverstein, arranged for I. Silverstein and her husband "to enter into possession of the Premises without a lease, or other contractual or statutory grant, authority or other basis." The Court found that no valid cause of action existed in Petitioner's claim because there was no landlord tenant relationship.

Petitioner provides two reasons why he believes the motion to dismiss should be reargued and renewed. The first point is that the Court misapprehended the facts and law in holding as a [*2]matter of law that no landlord tenant relationship existed between Gorbrook and I. Silverstein.Petitioner claims that there existed a tenancy at will or by the sufferance. Carmody Wait defines a tenancy at will as "[s]uch a tenancy may arise by virtue of an express grant at the will of the lessor, or by operation of law in certain instances, such as where the tenant has entered into possession under a lease for a definite term that is invalid." 13A Carmody-Wait 2d § 90:32. In the present case, there has been no express grant at the will of the lessor, nor has there been an invalid lease for a definite term, therefore, a tenancy at will was never created.

Petitioner cites Barbarita v. Shilling, which stated that a landlord tenant relationship can be "inferred from a medley of other factors such as the terms of the agreement, the circumstances of its making, and the subsequent behavior of the parties. 111 AD2d 200, 202, 489 N.Y.S.2d 86 [2d Dep't. 1985]. However, the holding in Barbarita is discussing situations in which a landlord tenant relationship had existed and a contract to buy was subsequently signed. "The general rule is that execution of a contract of sale between landlord and tenant serves to merge the landlord-tenant relationship into the vendor-vendee relationship and thus effectively terminates the former, unless the parties clearly intend the contrary result." Id. at 201-202. In the current case, the Petitioner and Respondent did not have a prior landlord tenant relationship before signing a contract for the sale of the house, therefore the holding in Barbarita is not applicable.

The Petitioner also cites to Stevens v. Nye for support of his first point. 283 A.D. 666, 127 N.Y.S.2d 4 [2d Dep't. 1954]. In Stevens, the Court stated, "[i]f a purchaser of real property is permitted or given the right to take possession thereof prior to the conveyance of title, the conventional relationship of landlord and tenant between him and the vendor is not thereby created." 283 A.D. at 666. The Court states that a landlord tenant relationship may exist if there is an express provision in the contract. Id. In the present case, there has been no express agreement establishing a landlord tenant relationship, therefore the Stevens holding is inapplicable to the present case. There was no landlord tenant relationship existing between Petitioner and Respondent, and Petitioner is not entitled to maintain a summary proceeding under RPL § 228 and RPAPL § 711.

Petitioner's second point is that he should be able to proceed under RPAPL § 713(9) which allows a vendor to terminate the occupancy of a vendee if the performance of the sale is to be completed within ninety days after its execution. Petitioner goes on to cite CPLR § 3211(a)(7) stating that "the Petition was 'to be afforded a liberal construction' and that the Court 'should accept as true the facts alleged in the complaint, accord [Gorbrook] the benefit of every possible inference. . . .'" Petitioner, in his petition, makes no mention of the sale the premises, therefore there is no inference that can be made to benefit Petitioner which would allow Petitioner to proceed under RPAPL § 713(9).

Even if RPAPL 713(9) were to be considered, the facts of this case do not support its application. A review of the facts demonstrates that the parties did not intend to close within 90 days as required by RPAPL 713(9). See Jacobs v. Andolina, 123 AD2d 835, 507 N.Y.S.2d 450 (2d Dep't 1986). [*3]

Therefore, the Petitioner's motion to renew and reargue is denied.

So Ordered:

/s/ Hon. Scott Fairgrieve

DISTRICT COURT JUDGE

Dated:June 17, 2011