BACKGROUND

The underlying summary holdover proceeding was commenced by MICHAEL WIMPFHEIMER, AS ADMINISTRATOR, CTA FOR THE ESTATE OF MAURICE [*2]BURTON (Petitioner) against ROBERT BURTON (Respondent), and seeks to recover possession of 30 East 22nd Street, Apt. 4-B, New York, New York, 10011 (Subject Premises) based on the allegation that Respondent is a tenant at sufferance, and that Petitioner terminated the tenancy by service of a thirty day notice.

Petitioner issued a thirty day notice of termination dated January 16, 2013,

On said date, Respondent appeared pro se ^[FN1] and filed a written answer asserting five affirmative defenses and a counterclaim. The second affirmative defense asserts that ownership of the Subject Premises was conveyed to Respondent by his mother, when she was executor of the estate of Maurice Burton, Respondent's father.

An amended answer was filed by Respondent on April 17, 2013, asserting additional defenses and counterclaims herein.

On July 29, 2013, Petitioner moved for an order dismissing Respondent's affirmative defenses and counterclaims ^[FN2] , Respondent moved for an order for summary judgment on his first affirmative defense, and Petitioner cross-moved for an order denying Respondent's motion and dismissing the first affirmative defense.

On September 18, 2013, Respondent again moved for summary judgment.

On June 24, 2014, the Court (Spears, J) issued a decision denying Respondent's motion for summary judgment and dismissing Respondent's first affirmative defense pertaining to service. The decision did not address the other relief sought and scheduled trial for August 5, 2014.

On July 15, 2014, Petitioner moved for an order changing the trial date, the motion was granted per stipulation, and a new trial date was set for August 19, 2014.

On November 6, 2014, Respondent moved for renewal and re-argument of the Court's denial of summary judgment and also moved to quash subpoenas served by Petitioner. The motion was denied by the court (Spears, J) on the return date.

On November 25, 2014, the proceeding was assigned to Part L for joint trial with Index Number 60102/2013. The trial continued and concluded on December 1, 2014. The proceeding was adjourned to December 15, 2014 for post trial submissions, and the court reserved decision.

PREVIOUS RELATED PROCEEDINGS

This was a holdover proceeding commenced by the Co-op Board against Petitioner and naming Respondent as an occupant. The proceeding was premised on the fact that Petitioner had failed to pay maintenance due for the Subject Premises and asserted $17,318.28 in arrears as [*3]of May 2014. The proceeding was initially returnable on June 20, 2014 and was discontinued without prejudice on the return date.

This proceeding pertains to the administration of the Estate of Maurice Burton. Maurice Burton was Respondent's father. The Subject Premises was owned by Respondent's father.

The court takes judicial notice of the contents of these files.

The Subject Premises was owner by Maurice Burton (MB) who was the Proprietary Lessee for the Subject Premises (Ex 1). MB died on February 17, 2000. The Will (Ex 4) of MB is dated May 8, 1997, was probated in Queens County, and letters testamentary were issued to Respondent's mother Anna Burton (AB) on October 4, 2000.

On November 10, 2008, an Article 81 Guardian, Michael Wimpfheimer, Esq ,was appointed for the person and property of AB. AB's letters testamentary were thereafter revoked, and letters of administration cta were issued to her Guardian. Respondent and his brother entered into a stipulation in the Surrogate's Court proceeding agreeing that Wimpfheimer would be the new executor for the Estate of MB. Letters of Administration issued to Michael Wimpfheimer on December 7, 2009 ( Ex 3).

The Will provided that if MB was not survived by AB, that MB's property should be evenly distributed between his two sons, Respondent and Philip Marc Burton (PB). The Will further provides that whether or not MB's wife dies before him, he gives 50% of the Subject Premises to Respondent and 50% to PB.

Wimpfheimer commenced a proceeding in Surrogate's Court against Respondent on September 20, 2011, seeking an accounting and a turnover of the rent from three cooperative apartments including the Subject Premises. Respondent answered and raised the issue of title. Respondent sat for a deposition in regards to said claims on January 5, 2012. A copy of the transcript was admitted into evidence (Ex B).

The Surrogates Court found that Respondent failed to establish he had title to the Subject Premises. In decision issued July 17, 2012, the court held in pertinent part:

Even if respondent had submitted prima facie evidence of ownership of any of the subject cooperative apartments, an issue of fact concerning the manner in which he acquired legal title is raised by the evidence submitted herein, including the exhibits and the testimony by respondent at his inquiry. With respect to the 22nd Street and 15th Street cooperative apartments, any proffered evidence of respondent's ownership of same is also in conflict with the express provisions of the decedent's will, and Anna Burton never sought approval of any distributions she made as executor by judicial settlement of her account in this Court.

Accordingly, the branch of the motion by respondent Robert Burton to declare him the owner of the 93rd Street cooperative apartment, the 22nd Street cooperative apartment and the 15th Street cooperative apartment is denied.

Paragraph 21 of the Proprietary Lease provides that upon death of the Lessee, consent [*4]shall not be unreasonably withheld to an assignment of the lease and shares to a financially responsible member of the Lessee's family.

DISCUSSION

At trial both parties focused primarily on Respondent's allegation that AB had transferred ownership of the Subject Premises to Respondent subsequent to the death of MB. "Questions of title or ownership are not litigated in summary proceedings (Ferber v Salon Moderne, Inc. 174 Misc 2d 945, 946)." Additionally, Respondent has already asserted this claim in Surrogate's court, therefore the court does not address Respondent's claims of ownership herein.

Petitioner served Respondent with a thirty day notice pursuant to RPL § 228 asserting that Respondent is a tenant at sufferance.

Respondent does not reside in the Subject Premises, but entered into constructive possession of the Subject Premises with the permission of AB at the time she was executrix. Respondent rented the Subject Premises at various times and made some payments to the coop board for maintenance. Petitioner waited many years after the death of AB to institute this proceeding, and based on that delay classifies Respondent as a tenant at sufferance.

"An estate at sufferance is an interest in land which exists when a person who had a possessory interest in land by virtue of an effective conveyance, wrongfully continues in possession of the land after the termination of such interest (City of New York v Utsey 185 Misc 2d 715,718, quoting Restatement of Property §22)."

However, pursuant to the will Respondent has an ongoing interest in 50% ownership of the Subject Premises. This interest of Respondent is not stated in the petition or predicate notice. A tenant at sufferance has no unexpired right to possession or ownership interest in a premises, and for this reason the court does not find that Respondent is a tenant at sufferance.

Moreover, while paragraph 11 of the petition asserts that Petitioner is authorized to maintain this proceeding, it does not specify which provision of RPAPL § 721 bestows such authorization on Petitioner. No landlord tenant relationship is alleged to exist between the parties, nor does the record establish any landlord tenant relationship^[FN3]

Similarly, RPAPL §713 provides instances where a summary proceeding may be maintained in the absence of a landlord tenant relationship. None of these grounds is applicable to the case at bar. Nor does Petitioner specify anywhere in its pleadings, or even in its post trial memorandum, which provision under RPAPL §713 allows him to maintain this summary holdover proceeding, given the acknowledged absence of a landlord tenant relationship between the parties, and the will bequeathing a 50% interest in the Subject Premises to Respondent.

Additionally, the court notes that there are multiple proceedings pending in Surrogate's court between the parties. Surrogates' Court has the authority to resolve any issued between the parties regarding the Subject Premises. Surrogates' Court has the authority to direct the sale of the Subject Premises and even in the absence of a sale to " .... determine the rights and interests of the parties and direct a conveyance to them in confirmation of their title or transferring the property to them in full or partial satisfaction of their distributive share (SCPA § 1907(5) (see also SCPA §1901 et seq."

It does not appear as if a summary proceeding is the appropriate vehicle to determine possessory rights to the Subject Premises.

Based on the foregoing, the Court finds Petitioner has failed to establish a right to a judgment of possession and the proceeding is dismissed.

Respondent failed to establish the right to relief herein on any of the asserted counterclaims, and all counterclaims are dismissed.

This constitutes the decision and order of this court.

Dated: January 5, 2015