Civil Court of the City of New York, Kings County, January 25, 2021

Madu, Edozie & Madu, P.C., Bronx (Uche Emelumadu of counsel), for respondents.

Law Offices of Bruce Goldstein, Brooklyn (Bruce Goldstein of counsel), for petitioner.

Respondents, Charvic-Inc., Chumarks International Co., Ltd., and American Transit Shipping Inc. (hereinafter, collectively, respondents), move by notice of motion dated March 6, 2020, for an order pursuant to CPLR 3212 granting summary judgment in favor of respondents, and dismissing the petition. Petitioner, Fulton Levy, LLC. (hereinafter petitioner), moves by notice of cross motion, dated December 4, 2020, for an order pursuant to CPLR 3211 (b) striking and dismissing respondents' affirmative defenses and pursuant to CPLR 3212 (a) for summary judgment in favor of petitioner, and denying respondents' motion for summary judgment. Pursuant to CPLR 3211, petitioner also seeks a judgment of possession with respect to the subject premises, 3122 Fulton Street, Ground Floor, Brooklyn, New York 11208 (hereinafter the premises). This action is a holdover proceeding commenced by the service and filing of a notice of petition and petition dated November 27, 2019.

Petitioner purchased the premises in a foreclosure sale and has a valid referee's deed, dated September 23, 2019. Chukwuma Oka (hereinafter Oka) is the previous owner of the premises and was a named defendant in the foreclosure action commenced against him in 2012. After the commencement of the foreclosure action, Oka entered into multiple leases with the other respondents named in this matter. The first lease between Oka and respondent, Chumarks International Co., Ltd. (hereinafter Chumarks), was signed on January 1, 2012. Oka then signed a superseding lease with Chumarks on February 1, 2015, that expired on January 30, 2017. Oka also signed a lease with respondent, Charvic-Inc. (hereinafter Charvic), on February 1, 2018, which expires on January 30, 2021. A third lease was signed by Oka and respondent, American Transit Shipping Inc. (hereinafter American), on February 2, 2018, one day after the Charvic lease, which will expire on January 29, 2024. Petitioner argues that the leases are invalid because they were all executed while Oka was in foreclosure. Petitioner{**71 Misc 3d at 231} also alleges, without evidence, that the respondent corporations in this action are operated by Oka's contacts and are part of an effort by Oka to frustrate petitioner's possession of the premises. Thus, petitioner seeks possession of the property in the instant proceeding. There is no allegation that Oka was unaware of the foreclosure action or did not participate in the foreclosure action, that the judgment of foreclosure is under appeal or that petitioner is not properly in possession of the deed to the premises. Nor have respondents submitted evidence that they have been impacted by the COVID-19 pandemic.

Respondents assert that tenants have occupied the premises both prior to and concurrent with the commencement of the foreclosure action. Further, respondents assert that because the respondents were never named or enjoined in the underlying foreclosure action, the petition should be dismissed pursuant to the Second Department's holding in 6820 Ridge Realty v Goldman (263 AD2d 22, 25 [2d Dept 1999]), which states, "tenants are clearly necessary parties to a foreclosure action." Respondents further claim they were not properly served in this action insofar as the substitute service affidavits state that the person served "resided or worked at the premises."

In response, petitioner asks that this court grant summary judgment in favor of [*2]petitioner and dismiss respondents' affirmative defenses, claiming that the respondents failed to plead their affirmative defenses with particularity and the affirmative defenses were conclusory and unsubstantiated by specific facts and that more detail would be needed to sustain those affirmative defenses. Moreover, per the terms of the leases between Oka and the respondents, section 14 provides that the leases are subordinate to mortgages and foreclosures. Therefore, the leases signed between Oka and the respondents are invalid on their faces.

Summary judgment is a drastic remedy and should be granted only in the absence of any triable issue of material fact. (See Rotuba Extruders v Ceppos, 46 NY2d 223 [1978]; Andre v Pomeroy, 35 NY2d 361 [1974].) In order to prevail, the movant must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient proof to demonstrate the absence of any material issues of fact. (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986].)

"The defense should also be dismissed because it is 'totally bereft of factual data,' 'merely pleading conclusions of law {**71 Misc 3d at 232}without supporting facts.' " (Brody v Soroka, 173 AD2d 431, 433 [2d Dept 1991] [brackets omitted], quoting Glenesk v Guidance Realty Corp., 36 AD2d 852 [2d Dept 1971].)

"A special proceeding may be maintained under this article after a ten-day notice to quit has been served upon the respondent in the manner prescribed in section 735, upon the following grounds: . . .

"5. Subject to the rights and obligations set forth in section thirteen hundred five of this chapter, the property has been sold in foreclosure and either the deed delivered pursuant to such sale, or a copy of such deed, certified as provided in the civil practice law and rules, has been exhibited to him." (RPAPL 713 [5].)

Respondents have failed to meet the burden required for summary judgment, as they failed to establish that there is no issue of material fact for trial. As to Chumarks, the lease term expired January 30, 2017, and the court has not been provided with any current lease for this tenant. Therefore, the respondent Chumarks no longer has the right to remain on the premises and is clearly subject to this holdover proceeding.

The two other named respondents, with current leases, Charvic and American, rely on the fact that they were not named in the underlying foreclosure action. This circumstance does not entitle respondents to summary judgment in the instant matter. While it would have been good legal practice for petitioner to amend the foreclosure action to include these respondents, it is not required as a predicate element to commence a holdover proceeding in Civil Court. Respondents rely upon 6820 Ridge Realty v Goldman (263 AD2d 22, 25 [2d Dept 1999]) to establish that petitioner erred by failing to amend the foreclosure action to include the respondents in this matter. However, that case is a foreclosure action commenced pursuant to RPAPL 1352. Petitioner correctly argues that the matter sub judice is a holdover proceeding commenced pursuant to RPAPL 713 (5), not RPAPL 1352. Petitioner proceeded under the correct RPAPL 713 (5) in this matter, which sets forth the elements necessary for a purchaser to commence a holdover action upon a foreclosed property. Goldman is inapplicable to matters commenced under RPAPL 735. As prescribed by RPAPL 713 (5), petitioner presented the court with the requisite 10-day notices for each of the respondents and a valid referee's deed to the property. (RPAPL 713 [5].){**71 Misc 3d at 233}

Respondents also argue that they were never properly served by petitioner, asserting via attorney affirmation, annexed to respondents' reply and in opposition to petitioner's cross motion, that substitute service was made upon an individual who "resided or worked" at the [*3]premises. Though the attorney affirmation in respondents' papers contains allegations of improper service, there is no party affidavit in any of the documents submitted by respondents to substantiate these allegations. Petitioner has established that it served respondents in accordance with RPAPL 735, which provides for substitute service upon an individual of "suitable age and discretion who resides or is employed at the property sought to be recovered." (RPAPL 735 [1].)

Petitioner argues that pursuant to paragraph 14 of the current leases of Charvic and American, the leases are invalid. Paragraph 14, of both leases, which have identical paragraph 14s, states:

"subordination—this lease is subject and subordinate in all respects to all ground leases . . . covering the real property which the premises form a part and to all mortgages which may nor or hereafter be placed on or affect such leases and/or real property, and/or Landlord's interest therein and to all renewals, modifications, consolidations, replacements, spreaders, and extensions thereof . . . this subparagraph (a) shall be self-operative and no further instrument of subordination shall be required."

In accordance with the leases signed by Charvic and American, the subordination clause contained in the leases is applicable. Therefore, petitioner is correct that the leases are invalid as they were subject to the subordination clause contained in paragraph 14. Respondents' affirmative defenses have no basis. There is no party affidavit or any other proof supporting the claims that the respondents were not served and they have failed to raise material issues of fact for trial. Thus, respondents' summary judgment motion must be denied.

Pursuant to paragraph 14 of the respondents' own leases, which contain a subordination clause, the current leases are invalidated. Additionally, the lease with respondent Chumarks is expired. Therefore, respondent Chumarks does not have an arguable right to occupy the subject premises.

Wherefore, it is hereby ordered and adjudged that respondents' motion for summary judgment pursuant to CPLR 3212{**71 Misc 3d at 234} is denied; and it is further ordered and adjudged that petitioner's cross motion for summary judgment pursuant to CPLR 3212 (a) and motion to dismiss respondents' affirmative defenses pursuant to CPLR 3211 (b) are granted in all respects; and it is further ordered and adjudged petitioner is awarded a final judgment of possession and a warrant of eviction. The warrant of eviction to issue forthwith but execution stayed through February 25, 2021. The earliest execution date of the warrant of eviction is February 26, 2021.