Landlord and Tenant - Summary Proceedings - Termination of Tenancy at Sufferance - Commercial Lease - Motion to Dismiss Proceeding

Igbokwe PLLC, New York City, for respondents.

Christos Pappas & Associates PLLC, Whitestone, for petitioner.

{**88 Misc 3d at 278}The respondents have moved pursuant to CPLR 3211 seeking to dismiss the petition on the grounds it fails to state any cause of action. The petitioner has opposed the motion. The parties have submitted papers and arguments were held. After reviewing all the arguments the court now makes the following determination.

According to the petition the respondent Mike Ramlogan owned premises located at 111-14 101st Avenue in South Richmond Hill. The ground floor was used as a Hare Krishna Mandir (Temple) and this action only concerns the ground floor. On September 19, 2017, a judgment of foreclosure and sale was entered concerning the above noted property and the property was ultimately purchased by the petitioner in November 2020. The petition states that pursuant to Real Property Law § 228 and RPAPL 711 (1) the respondents were tenants at sufferance and were served with a notice of termination on October 15, 2024, indicating they were required to vacate the premises by November 30, 2024. The respondents failed to vacate on that date and this action was commenced. The respondents now move seeking to dismiss the petition. They assert that there is no landlord-tenant relationship between the parties and that consequently RPAPL 711 (1), the title of which states that it pertains to "[g]rounds where landlord-tenant relationship exists," is wholly inapplicable. Therefore, the petition fails to state any action and must be dismissed. The petitioner argues the petition validly pleads grounds for this proceeding and the motion should be denied.

It is well settled that upon a motion to dismiss the court must determine, accepting the allegations of the complaint or petition as true, whether the party can succeed upon any reasonable view of those facts (Perez v Y & M Transp. Corp., 219 AD3d 1449 [2d Dept 2023]). Further, all the allegations in the complaint or the petition are deemed true and all reasonable inferences may be drawn in favor of the plaintiff (Archival, Inc. v 177 Realty Corp., 220 AD3d 909 [2d Dept 2023]). Whether the complaint or the petition will later survive a motion for summary judgment, or whether the plaintiff will ultimately be able to prove its claims, of course, plays no part in the determination of a pre-discovery CPLR 3211 motion to dismiss (see Lam v Weiss, 219 AD3d 713 [2d Dept 2023]).

A tenancy at sufferance exists where a person once maintained a valid possessory interest in property who then wrongfully{**88 Misc 3d at 279} continues in possession after the termination of the interest (City of New York v Utsey, 185 Misc 2d 715 [App Term, 2d Dept 2000]). As one early commentator observed "[a] tenant at sufferance is he that at the first came in by lawfull demise, and after his estate ended, continueth in possession and wrongfully holdeth over" (see Coke on Littleton 57b). Therefore, anyone who once maintained a valid lease that remains in possession when the lease expires is a tenant at sufferance (see MH Residential 1, LLC v Barrett, 78 AD3d 99 [1st Dept 2010]). In addition, to create a tenancy at sufferance there must be a delay by the owner seeking recovery of the premises (MASTAS v Extra Closet, 146 Misc 2d 698 [Civ Ct, Kings County 1990]). The dearth of cases that actually discuss this legal expedient is due to the fact that delay or laches on the part of the landlord is a necessary component establishing a tenant at sufferance (Peerless Sugar [*2]Co. v 35 Steuben St. Realty Corp., 66 NYS2d 839 [Sup Ct, Kings County 1946]). Indeed, the delay of the landlord is viewed as an assent by the landlord to the continued occupation by the tenant requiring a 30 day notice pursuant to Real Property Law § 228 (Smith v Littlefield, 51 NY 539 [1873]). In any event, the distinction between a holdover tenant who generally was not required to receive any notice prior to summary proceedings (see North Shore Community Servs. v Lehrfeld, 3 Misc 3d 436 [Nassau Dist Ct, 1st Dist 2004]) and a tenant at sufferance who must receive such notice has largely been abrogated by the passage of the Housing Stability and Tenant Protection Act of 2019. Specifically, Real Property Law § 232-a now requires service of a notice prior to the commencement of summary proceedings against any tenant. Thus, any tenancy at sufferance created by the landlord's delay, in residential settings, no longer affords any greater rights to the actual tenant.

The uniformity of these notification requirements is absent in the commercial setting. Indeed, Real Property Law § 232-a specifically carved out an exception to the new notice requirements for tenancies "other than a residential tenancy" (id.). Thus, a notice would not be required upon the swift efforts of a landlord seeking the tenant's removal upon the termination of a lease. However, any laches occasioned by the landlord's delay, which would create a tenancy at sufferance, would require a notice of termination prior to the commencement of summary proceedings. In this regard, Real Property Law § 228 states that{**88 Misc 3d at 280}

"[a] tenancy at will or by sufferance, however created, may be terminated by a written notice of not less than thirty days given in behalf of the landlord, to the tenant, requiring him to remove from the premises . . . At the expiration of thirty days after the service of such notice, the landlord may re-enter, maintain an action to recover possession, or proceed, in the manner prescribed by law, to remove the tenant, without further or other notice to quit" (id.).

In this case, the respondents were the owners of the premises who lost the property in foreclosure. They never maintained a relationship with the petitioner and surely had no lease with them. None of these impediments prevent the creation of a tenancy at sufferance. A tenancy at sufferance does not require any prior relationship between the parties at all. For example, a tenant at sufferance can exist when a subtenant remains in possession after the prime tenancy has been terminated (2601-2609 Bainbridge Ave. LLC v Algernon, 82 Misc 3d 1208[A], 2024 NY Slip Op 50253[U] [Civ Ct, Bronx County 2024]). Additionally, a sublessee who maintained a lease with someone who only maintained a life estate was considered a tenant at sufferance upon the death of the life tenant (Boyar v Goodman, 202 AD2d 541 [2d Dept 1994]). Therefore, the remaindermen were required to serve a notice to quit (id.; see also Livingston v Tanner, 14 NY 64 [1856]). The respondents argue they are not tenants at sufferance because "a tenancy by sufferance cannot be created where there was never a landlord-tenant relationship to begin with" (see affirmation in support of mot at 39 [NY St Cts Elec Filing (NYSCEF) Doc No. 8]). However, there can be little argument that no such relationship is in fact required. Rather, "[a] tenancy at sufferance arises at common law when an occupant continues in possession after a possessory interest terminates and the occupant has no privity to the party entitled to possession" (4720 Ave., Inc. v House, 81 Misc 3d 139[A], 2023 NY Slip Op 51459[U], *2 [App Term, 2d Dept, 9th & 10th Jud Dists 2023]). The facts of this case precisely fit within that definition since they remained in possession when their rights to do so terminated. Surely, at this juncture there [*3]can be no conclusion the respondents cannot be classified as tenants at sufferance as a matter of law.

The petitioner in this case served a notice pursuant to Real Property Law § 228, the statute specifically designated for ending a tenancy at sufferance (Pondview Corp. v Russand, Inc.,{**88 Misc 3d at 281} 10 Misc 3d 1054[A], 2005 NY Slip Op 51950[U] [Sup Ct, Rockland County 2005]). That notice stated that if the respondents failed to vacate the premises by the specified date then "a summary proceeding under Article 7 of the Real Property Actions and Proceedings Law to remove you therefrom will be commenced" (see thirty [30] day notice of termination of tenancy at sufferance [NYSCEF Doc No. 1]).

The respondents next argue the petition must be dismissed because the petition impermissibly based its relief upon RPAPL 711 (1) which only applies when a landlord-tenant relationship exists and clearly no such relationship exists in this case. However, the relief in this case flows through Real Property Law § 228, the specific statute enacted to deal with tenancies at sufferance, and not RPAPL 711 (1). Indeed, the practice commentaries to Real Property Law § 228 state that Real Property Law § 228 "is applicable where laches acts to bar the more common RPAPL § 711(1) holdover proceedings or where there is no agreement between the parties to pay rent" (see Dan Blumenthal, 2018 Prac Commentaries, McKinney's Cons Laws of NY, Real Property Law § 228). The mere inclusion of RPAPL 711 (1) within the petition is simply excess verbiage that cannot demand dismissal of the entire action. This is particularly true where the notice of termination sent to the respondents did not include the specific section of the Real Property Actions and Proceedings Law at all and simply referenced an action pursuant to "Article 7" (supra). The fact the relief sought is actually pursuant to Real Property Law § 228 does not render the entire petition improper. As the Court observed in Youssef v Triborough Bridge & Tunnel Auth. (24 AD3d 661 [2d Dept 2005]), "pleadings should be liberally construed and defects ignored unless a substantial right is prejudiced" (id. at 661). Therefore, the mere citation to a wrong statute within a pleading is not grounds for dismissal as long as the party is made aware of the specific causes of action that are pleaded (id.). The petition in this case overwhelmingly afforded the respondents with notice of the claims as well as the basis for the relief sought. The reference to RPAPL 711 (1) does not render the petition defective in any way at all.

Therefore, based on the foregoing, the motion seeking to dismiss the petition is denied.