Yacoob v Persaud (2012 NY Slip Op 50249(U))

Yacoob v Persaud

2012 NY Slip Op 50249(U) [34 Misc 3d 150(A)]

Decided on February 9, 2012

Appellate Term, Second Department

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This opinion is uncorrected and will not be published in the printed Official Reports.

Mohamed F. Yacoob, Respondent,

against

Rohilya R. Persaud, Appellant, -and- "JOHN DOE", "JANE DOE 1" and "JANE DOE 2," Undertenants.

Appeal from a decision of the Civil Court of the City of New York, Queens County (Gilbert Badillo, J.), dated November 29, 2010, deemed from a final judgment of the same court entered November 29, 2010 (see CPLR 5520 [c]). The final judgment, after a nonjury trial, awarded petitioner possession in a holdover summary proceeding.

ORDERED that the final judgment is reversed, without costs, and the matter is remitted to the Civil Court for a new trial.

In this holdover summary proceeding, Rohilya R. Persaud (appellant) sought to interpose an equitable defense regarding the ownership of the subject cooperative apartment. Appellant also commenced a Supreme Court action seeking to impose a constructive trust upon the cooperative shares. The Supreme Court granted a preliminary injunction staying petitioner from proceeding with this summary proceeding, which was conditioned upon appellant, among other things, filing an undertaking. Upon finding that appellant had failed to comply with that [*2]condition, the Civil Court held a trial, at which it refused to allow appellant to present any evidence pertaining to her equitable defense, and entered a final judgment of possession in petitioner's favor.

We reverse the final judgment and remit the matter to the Civil Court for a new trial. In a summary proceeding, any legal or equitable defense may be interposed (RPAPL 743), and, thus, the court was required to entertain appellant's defense to petitioner's assertion that he is entitled to possession (see Decaudin v Velazquez, 15 Misc 3d 45, 47 [App Term, 2d & 11th Jud Dists 2007]; Chopra v Prusik, 9 Misc 3d 42 [App Term, 2d & 11th Jud Dists 2005]). "Although title cannot be determined as an affirmative claim in the context of a summary proceeding, a question of title can properly be raised as a defense to the proceeding" (Muzio v Rogers, 20 Misc 3d 143[A], 2008 NY Slip Op 51763[U] [App Term 9th & 10th Jud Dists 2008]), as can a claim of constructive title (Paladino v Sotille, 15 Misc 3d 60 [App Term, 9th & 10th Jud Dists 2007]). Accordingly, the Civil Court should have entertained appellant's defense disputing the ownership of the subject premises.