Opinion
No. 2023-51343 Index No. L&T 312733/23
12-11-2023
Federal National Mortgage Association, Petitioner v. Jason Smith, et al., Respondents
Attorneys for Petitioner: FEIN, SUCH & CRANE, LLP
Unpublished Opinion
Attorneys for Petitioner: FEIN, SUCH & CRANE, LLP
Logan J. Schiff, J.
Recitation of the papers considered in rendering summary determination pursuant to CPLR 409(b): NYSCEF Doc. Nos. 1-33.
This is a holdover proceeding commenced under RPAPL 713(1), 713(7), and/or RPAPL 711 following a non-judicial foreclosure of a cooperative unit located in Woodside, New York. Petitioner purchased the shares allocated to the subject apartment, together with the appurtenant proprietary lease entitling the shareholder to possession, from the secured lender at an auction held pursuant to Article 9 of the Uniform Commercial Code. Respondent was the proprietary lessee and former shareholder.
This matter was originally scheduled for inquest on November 14, 2023, at which time the court advised Petitioner it did not believe it had pled a viable cause of action and afforded it an opportunity to submit supplemental briefing, which was submitted on December 8, 2023. Having now reviewed Petitioner's pleadings and memorandum of law, this court must dismiss the proceeding as there is no factual dispute that Petitioner has failed to state a basis for jurisdiction under any provision of Article 7 of the RPAPL.
"As the right to maintain summary proceedings did not exist at common law and is solely a creation of statute, it applies only in those cases authorized by the statute" (Dulberg v Ebenhart, 68 A.D.2d 323 [1st Dept 1979]). RPAPL 713 does not allow for a summary proceeding against the prior proprietary lessee following an Article 9 sale of cooperative shares (see Federal Home Loan Mtge. Assn v Perez, 968 N.Y.S.2d 317 [App Term, 2d Dept, 9th & 10th Jud Dists 2013]; Rayevich, LLC v Gerstman, 45 Misc.3d 134 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]; Federal Natl. Mtge. Assn. v Simmons, 12 N.Y.S.3d 487 [App Term, 1st Dept 2015]; Retained Realty Inc. v Zwicker [App Term, 1st Dept 2014]; see also Castle Peak 2012-1 REO, LLC v New York Found. for Senior Citizens, 115 N.Y.S.3d 805 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019] ["There is no provision in the RPAPL which allows for the maintenance of a summary proceeding by a purchaser in lieu of foreclosure."]; Sequoia Partners, LLC v Ali, 126 N.Y.S.3d 841 [App Term, 2d Dept, 9th & 10th Jud Dists 2020] [no cause of action under RPAPL 713[5] or likely any provision under RPAPL 713 for a purchaser from a purchaser in foreclosure]).
Moreover, even assuming arguendo that pleading alternative causes of action under RPAPL 711 and 713 is theoretically permissible (see Kew Gardens Portfolio Holdings, LLC v Bucheli, 130 N.Y.S.3d 878 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020], citing Matter of Kern v Guller, 40 A.D.3d 1231 [3d Dept 2007], Petitioner cannot unilaterally create a tenancy in the absence of contractual privity with the former proprietary lessee in order to shoehorn a cause of action into RPAPL 711 (see County of Suffolk Div. of Real Estate v Kandler, 781 N.Y.S.2d 623 [App Term, 2d Dept, 9th & 10th Jud Dists 2003]. If this is an undesirable result, it is for the legislature to remedy (see Ami v Ronen, 187 N.Y.S.3d 463 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2023]).
Accordingly, it is ordered and adjudged upon the court's review of the papers and pleadings that the Petition is dismissed without prejudice pursuant to CPLR 409(b).