Opinion
570558/14
03-16-2015
Jose GONCALVES, Petitioner–Appellant v. SOHO VILLAGE REALTY, INC., and Kenneth Rosenblum, Respondents–Respondents.
Sokolski & Zekaria, P.C., New York City (Robert E. Sokolski of counsel), for appellant. Belkin Burden Wenig & Goldman, LLP, New York City (Magda L. Cruz of counsel), for respondents.
Sokolski & Zekaria, P.C., New York City (Robert E. Sokolski of counsel), for appellant.
Belkin Burden Wenig & Goldman, LLP, New York City (Magda L. Cruz of counsel), for respondents.
PRESENT: LOWE, III, P.J., SHULMAN, HUNTER, JR., JJ.
Opinion
PER CURIAM. Order (Phyllis K. Saxe, J.), dated June 10, 2014, reversed, with $10 costs, motion denied, petition reinstated and matter remanded to Civil Court for further proceedings.
Respondents' postanswer motion to dismiss the illegal lockout proceeding based on documentary evidence (CPLR 3211[a][1] ) should have been denied as untimely (see CPLR 3211[e] ; Masada Universal Corp. v. Goodman System Co., 121 A.D.2d 518, 503 N.Y.S.2d 835 [1986] ; see also Hendrickson v. Philbor Motors, Inc., 102 A.D.3d 251, 257, 955 N.Y.S.2d 384 [2012] ). Further, in the absence of notice to the parties pursuant to CPLR 3211(c), respondents' motion could not properly be treated as one seeking summary judgment dismissing the petition (see Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 272, 401 N.Y.S.2d 182, 372 N.E.2d 17 [1977] ). Nor, in any event, is summary resolution of this illegal lockout proceeding warranted, since the record so far developed raises several material triable issues, including whether petitioner, the son of the now-deceased rent controlled tenant, was in actual or constructive possession of the apartment premises at the time of the alleged lockout (see RPAPL 713 [10 ]; Banks v. 508 Columbus Props., 8 Misc.3d 135[A], 2005 N.Y. Slip Op. 51189[U], 2005 WL 1751899 [App.Term, 1st Dept.2005] ).
Contrary to the view expressed below, petitioner's right to maintain this forcible entry and detainer summary proceeding was not dependent upon the number of “consecutive” days he may have resided in the apartment premises prior to the tenant's death (see RPAPL 713[10], 721[4] ). Although “possession for thirty consecutive days or longer” is a relevant construct in determining whether a landlord-tenant relationship exists in connection with certain limited classes of occupants (see RPAPL 711 ), it plays no part at all in determining whether a particular forcible entry proceeding is properly maintainable (see generally Dixon v. Fanny Grunberg & Assoc.,
LLC, 4 Misc.3d 139[A], 2004 N.Y. Slip Op. 50943[U], 2004 WL 1924046 [App.Term, 1st Dept.2004] ; Markun v. Weckstein, 100 Misc. 668, 670, 166 N.Y.S. 736 [App.Term, 1st Dept.1917] ).
In reinstating the petition, we express no view as to the ultimate outcome of petitioner's restoration claim. While respondent, during the informal proceedings held below, pointed to some factors tending to refute petitioner's possessory claim, proper resolution of the threshold possessory issues raised herein cannot be resolved on this cold, limited record but must await a plenary hearing. Nor do we have occasion to address the bona fides of any succession claim that petitioner may seek to pursue at another time and in another forum.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.