[*1]
1504 Assoc., L.P. v Wescott
2012 NY Slip Op 51002(U) [35 Misc 3d 1235(A)]
Decided on June 6, 2012
Civil Court Of The City Of New York, New York County
Lau, 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This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on June 6, 2012
Civil Court of the City of New York, New York County


1504 Associates, L.P., Petitioner,

against

Maria Conception Wescott, Respondent.




79943/09



Petitioner's Counsel:

The Price Law Firm LLC

220 Fifth Avenue, Suite 1301

New York, NY 10001

(212) 675-1125

Respondents' Counsel:

Karlsson & Ng, P.C.

305 Broadway, Suite 1001

New York, NY 10007-1170

(212) 406-3070

Laurie L. Lau, J.



Petitioner, 1504 Associates, L.P., commenced this licensee holdover proceeding against respondent, Maria Concepcion Westcott, to recover possession of Apartment A (the "Apartment") in the building located at 129 East 97th Street, in Manhattan (the "Building") [*2]following the death of the rent-controlled tenant, Lyman Wescott, in June 2009. Respondent asserted a claim of succession to the Apartment alleging that she was the widow of Lyman Wescott and met the necessary criteria to succeed to his tenancy. The parties' motions for summary judgment were denied by Judge Lebovits in a decision and order dated July 13, 2010. The case was tried and Judge Brenda Spears issued a decision and order, finding in favor of petitioner and awarding it a final judgment of possession. The judgment of possession dated November 30, 2011, was signed by Judge Jean Schneider in her capacity as Supervising Judge. Respondent appealed. Petitioner also appealed, challenging other aspects of the judgment.

Petitioner now moves for an order against respondent for the fair market use and occupancy of the Apartment. Respondent cross moves to dismiss, asserting that the court lacks subject matter jurisdiction (so that the motion is not untimely), relying on the recent decision of Judge Sabrina Kraus in Golden Mountain Realty Inc. v Severino, 2012 NY Slip Op 22048, 939 NYS2d 835 [Civ Ct NY Co, February 29, 2012], as well as on Herzog v Joy, 74 AD2d 372 [1st Dept 1980], affirmed, 53 NY2d 821 (1981).

Initially, the court denies petitioner's motion for fair market rent without prejudice inasmuch as there is presently an Appellate Term stay ordering respondent to pay rent at the last agreed upon rate.

The court now turns to respondent's cross-motion to dismiss on the basis of Severino and Herzog. Respondent's cross-motion is denied. Neither Severino nor Herzog held that failure to obtain a certificate of eviction undermines subject matter jurisdiction.[FN1]

Severino involved a succession claim to a rent-controlled apartment by a family member. The court dismissed the petition, after a trial, holding that the landlord was required to obtain a certificate of eviction from the Division of Housing and Community Renewal before commencing a summary holdover proceeding against a family member claiming succession.[FN2] Severino did not hold that absence of a certificate of eviction voids the court's subject matter [*3]jurisdiction. The court dismissed the petition for failure to prove a prima facie case; had the court lacked subject matter jurisdiction, this order would have been a nullity.

The Appellate Division's opinion in Herzog v Joy, 74 AD2d 372 [1st Dept 1980], affirmed, 53 NY2d 821 [1981], does not contain the word "jurisdiction," and it does not stand for any jurisdictional proposition, certainly not for the proposition that a court's subject matter jurisdiction in a succession holdover proceeding depends on the landlord's having obtained a certificate of eviction.

Severino is not good authority for a requirement of a certificate of eviction in a succession holdover proceeding. It goes against long established appellate authority. In Bromer v Rosensweig, 166 Misc 2d 201 [App Term 1st Dept 1995], the court held that, where the occupant's status as a successor tenant has yet to be determined, the landlord need not obtain a certificate of eviction before commencing a summary proceeding to evict the occupant.[FN3] Accord, Schneyer v Silberg, 156 AD2d 200 [1st Dept 1989], appeal dismissed, 77 NY2d 872 [1991] (proceeding brought in Supreme Court); 122 East 103 St. Assocs. v Albert, NYLJ June 7, 1993 at 28, col. 6 [App Term 1st Dept]; 300 West 49th St. Assocs. v Towasser, NYLJ August 23, 1989 at 21, col. 2 [App Term 1st Dept]; 1240 Park Ave. Assocs., L.P. v Hall, NYLJ March 7, 1989 at 21, col. 2 [App Term 1st Dept]; Kunkel v Walicki, NYLJ February 14, 1989 [App Term 2nd & 11th Jud Dist]; London Terrace Gardens v Wiebusch, NYLJ November 16, 1988 at 21, col 2 [App Term 1st Dept]; Park Holding Co. v Hanlon, NYLJ May 19, 1988 at 11, col. 3, as corrected NYLJ May 24, 1988 at 21, col. 2 [App Term 1st Dept]; Greene v Patterson, NYLJ July 26, 1984 at 6, col. 1 [App Term 1st Dept].[FN4] Severino does not and cannot overrule Bromer or any of these decisions.

In Severino the court discussed and relied on Herzog, supra. In that case the landlord brought an article 78 proceeding upon denial of his application for decontrol. The Appellate Division reversed the court below, which had directed that an order of decontrol be issued, because that court had ruled that the occupant claiming succession must be a member of the immediate family of the tenant of record, whereas the regulation required only that the occupant be a member of the tenant's family. The occupant was the tenant's sister and had lived with her in the premises; she could not be evicted in a non-primary residence decontrol proceeding. Herzog cannot stand for the proposition that a certificate of eviction must be obtained prior to commencement of a succession holdover proceeding.

The Severino court also discussed and relied on Sohn v Calderon, 78 NY2d 755 [1991], which held that a DHCR eviction certificate was necessary to an owner's recovery of possession of rent-controlled premises from his tenants for demolition purposes, based on section 26-408(b), requiring issuance of a certificate of eviction where landlord seeks demolition in the proper circumstances. Sohn was not about a succession holdover proceeding, was based on interpretation of a different statute and regulation, and cannot stand for the proposition that a [*4]certificate of eviction must be obtained prior to commencement of such a proceeding.

The court observes that recently in WSC Riverside Drive Owners LLC v Williams, 2012 NY Slip Op 50995(U) [May 30, 2012 Civ Ct NY Co], Judge Sabrina Kraus ordered dismissal of a landlord's succession holdover petition on the ground that the surviving occupant qualified for succession to tenancy as a non-traditional family member. The petition was not dismissed for failure to obtain a certificate of eviction, as Severino would seem to require.

Respondent's reliance on Golden Mountain Realty Inc. v Severino and Herzog v Joy is misplaced. No certificate of eviction was required here. Accordingly, respondent's cross-motion to dismiss is denied.

This is the decision and order of the Court.

Dated:New York, New York

June 6, 2012

______________________________

LAURIE L. LAU, J.H.C.

Footnotes


Footnote 1: Failure to obtain a certificate of eviction does not affect jurisdiction. Jackson v New York City Housing Authority, 88 Misc 2d 121 [App Term 1st Dept 1976](where court has subject matter jurisdiction under RPAPL Article 7 and personal jurisdiction is established, a proceeding is not "jurisdictionally defective"). ee Matter of Ballard v HSBC Bank USA, 6 NY3d 658 [2006]. Jackson has been cited on jurisdiction with approval by numerous appellate courts; e.g., 433 West Assocs. v Murdock, 276 AD2d 360 [2000]; Lanz v Lifrieri, 104 AD2d 400 [1984]; Birchwood Towers #2 Assocs. v Schwartz, 98 AD2d 699 [1983]; Halle v Abdul Jaami, 2008 NY Slip Op 51579(U)[App Term 1st Dept 2008]; B & B Manhattan, LLC v Sack, 2006 NY Slip Op 50959(U), 12 Misc 3d 128(A)[App Term 1st Dept 2006]; Brusco v Miller, 167 Misc 2d 54 [App Term 1st Dept 1995]; Baer v Gotham Craftsman Ltd, 154 Misc 2d 490 [App Term 1st Dept 1992]; Jocar Realty Co. v Rukavina, 137 Misc 2d 1045 [App Term 1st Dept 1987]; Jamal Estates v Crockwell, 113 Misc 2d 548 [App Term 1st Dept 1982].

Footnote 2:. The facts found by the court are that the respondent Abraham Severino was the son of Antonia Bido and Manuel Severino, who were married. On Bido's death or departure—the facts are not clear, Manuel Severino would have succeeded to tenancy as her husband who had lived with her in the premises for many years. On Manuel Severino's death, respondent would have succeeded to tenancy as his son who had lived in the premises with him for approximately six years. The landlord's petition was not jurisdictionally defective; he asserted that Abraham Severino was a licensee or a subtenant, in any case not entitled to possession, and so not entitled to the protection afforded by a requirement of a prior DHCR proceeding. A finding otherwise did not alter the court's subject matter jurisdiction, which is established by RPAPL § 713. If Abraham Severino succeeded to tenancy, Administrative Code § 26-403.2 and 9 NYCRR § 2202.25 would entitle the landlord to a rent increase equal to a rent stabilization vacancy increase upon succession by a second successor such as Severino. Neither respondent's answer nor his post-trial brief addressed the question of a certificate of eviction; the court's dismissal on this basis was sua sponte.

Footnote 3: In romerthe Appelate Term reverseda sua sponte dismissal below prior to trial of a succession holdover petition due to failure to obtain a DHCR eviction certificate.

Footnote 4:.ee also, e.g.(succession holdover cases decided by appellate courts where there is no mention of a certificate of eviction), raschiv Stahl 74 NY2d 201 [1989]; 29 Seventh Ave. Co. v eider 67 NY2d 930 [1986], eversing111 AD2d 670 [1st ept1985] nd reinstating125 Misc 2d 39 [App Term 1st ept1984]; reenberg v Coronet Properties 167 AD2d 291 [1st ept1990].