[*1]
Kabir v Limbert
2015 NY Slip Op 50758(U) [47 Misc 3d 147(A)]
Decided on May 6, 2015
Appellate Term, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected in part through August 11, 2015; it will not be published in the printed Official Reports.


Decided on May 6, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., SOLOMON and ELLIOT, JJ.
2013-2445 Q C

Zahangir Kabir, Appellant,

against

Eva M. Limbert, Respondent, -and- JOHN DOE and JANE DOE, Occupants.


Appeal from an order of the Civil Court of the City of New York, Queens County (Michael J. Pinckney, J.), entered September 25, 2013. The order granted occupant Eva M. Limbert's motion to dismiss the petition.

ORDERED that the order is affirmed, without costs.

Petitioner commenced this proceeding pursuant to RPAPL 713 (5), alleging that Eva M. Limbert (occupant) had entered into possession pursuant to an oral rent


agreement made between occupant and the former owner. The petition also alleged, inconsistently, that the apartment is, and is not, subject to rent stabilization. Occupant moved to dismiss the petition, arguing, among other things, that she has a rent-stabilized lease, and therefore that a proceeding pursuant to RPAPL 713 (5) does not lie, and that the petition contained fundamental misstatements and omissions. In opposition to occupant's motion, landlord acknowledged that he had known about occupant's lease before commencing this proceeding, but alleged that the lease was invalid. The Civil Court granted occupant's motion and dismissed the petition, finding that the lease was not invalid.

We need not determine the validity of the lease, as we affirm the dismissal of the petition on the ground that it contained fundamental misstatements and omissions (see Jeffco Mgt. Corp. v Local Dev. Corp. of Crown Heights, 22 Misc 3d 141[A], 2009 NY Slip Op 50455[U] [App Term, 2d, 11th & 13th Jud Dists 2009]), and "was not reasonable under the attendant circumstances" (McFadden v Sassower, 26 Misc 3d 141[A], 2010 NY Slip Op 50316[U], *2 [App Term, 9th & 10th Jud Dists 2010]). The petition did not adequately put the court and occupant on notice of landlord's claim that occupant's purported rent-stabilized lease was invalid based on a notice of pendency and judgment of foreclosure that had been entered prior to the execution of the lease.

Accordingly, the order is affirmed.

Pesce, P.J., Solomon and Elliot, JJ., concur.


Decision Date: May 06, 2015