560 Colonial LLC v Advance Abstract Corp. (2011 NY Slip Op 51385(U))

560 Colonial LLC v Advance Abstract Corp.

2011 NY Slip Op 51385(U) [32 Misc 3d 1222(A)]

Decided on June 22, 2011

District Court Of Nassau County, First District

Fairgrieve, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

The following named papers numbered 1 to 3

submitted on this Motion

on June 7, 2011

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

Petitioner, 560 Colonial LLC, filed an non-payment proceeding against Respondent, Advance Abstract Corporation, for possession as well as arrears in the sum of $32,092.08.

Respondent submits a motion to dismiss the petition for lack of jurisdiction. Respondent cites South Ferry Bldg. Co. v. 44 Wall Street Fund, Inc., wherein it stated "[i]t is essential to the jurisdiction of the court to entertain a summary proceeding and to make a final judgment therein that the tenant should be in possession." 142 Misc 2d [*2]54, 55 (NY City Civ.Ct. 1988) (quoting Warrin v. Haverty, 149 App. Div. 564, 567 [1st Dept. 1912]). In an affidavit, Respondent claims he instructed Ms. Simonian to return the keys to the premises on April 29, 2011.

In First Nat. Bank v. Wall St. Leasing Corp., the court stated that, "[w]hen a tenant upon relinquishing possession returns the keys, this is as a general rule, constitutes an act evidencing an intent to offer a surrender." 80 Misc 2d 707, 709 (NY City Civ.Ct. 1974) (Citing 2 Rasch, New York Landlord and Tenant [2d ed.], § 869). Respondent therefore had relinquished possession on April 29, 2011, when Ms. Simonian returned the keys to Petitioner.

In opposition to Respondent's motion, Petitioner cites Four Forty-One Holding Corp. v. Bloom, and Torres v. Torres. In Four Forty-One, the court stated "jurisdiction over the subject-matter having once vested, was not divested by subsequent events, although of such character as would have prevented jurisdiction from attaching in the first instance. 148 Misc. 565, 568 [1st Dept. 1933]. In Torres, the court stated that since Respondent was in possession of the subject premises when the petition and notice of petition were filed, it is of no consequence that it vacated said premises after this matter was properly commenced. 13 Misc 3d 1167 (Civil Ct. Kings Co. 2006). In this case, the petition was filed on April 28, 2011, the day before Respondent instructed Ms. Simonian to return the keys.

In a reply affidavit, Respondent claims that although the keys were not delivered until April 29, 2011, the Petitioner was aware that Respondent had already vacated the subject premises. In, First National Bank v. Wall St. Leasing Corp., the court stated that "if the keys are not surrendered this fact alone is not conclusive that the premises have not been surrendered. 80 Misc 2d at 709. Respondent goes on to cite 488 Arcade, L.L.C. v. 90 North Pearl, Inc., which states that "the issue is not whether petitioners had possession of the premises, but whether respondent was in possession of the premises at the time this proceeding was commenced." 28 Misc 3d 1239(A).

Therefore, because the respondent was no longer in possession of the subject premises at the time the petition and notice of petition were filed, the Court lacks subject matter jurisdiction. The case is dismissed.