Opinion
Index No. L&T 314115/23
03-07-2024
Raquel Victoria, ADMINISTRATOR OF THE ESTATE OF RAMON L. VICTORIA, Petitioner, v. Fidela Roxanne Victoria, et al., Respondents.
Counsel for Petitioner: Jack L. Glasser Counsel for Respondent: Ruiz Law Group, P.C.
Unpublished Opinion
Counsel for Petitioner: Jack L. Glasser
Counsel for Respondent: Ruiz Law Group, P.C.
Logan J. Schiff, J.
Recitation, as required by CPLR § 2219(a), of the papers considered in the review of Respondent Fidela Roxanna Victoria's motion to dismiss pursuant to CPLR 3211 (Mot. Seq. 1), and Petitioner's cross-motion for summary judgment pursuant to CPLR 3212 (Mot. Seq. 2): NYSCEF 20-34.
Upon the foregoing cited papers, the Decision/Order on Respondent's motion to dismiss, and Petitioner's cross-motion is as follows:
Petitioner commenced this licensee holdover proceeding in August 2023 as administrator for the estate of the Ramon L. Victoria, the putative shareholder and proprietary lessee of the subject apartment located at 141-19A 79 Avenue, Flushing, New York 11367. Petitioner alleges that following Mr. Victoria's death, the Respondents' license to reside in the apartment expired. Prior to commencement, Petitioner served of a 10-day notice to quit pursuant to RPAPL 713(7).
Respondent Fidela Roxanna Victoria now moves to dismiss, principally arguing that the proceeding does not belong in housing court by virtue of her potential ownership interest in the underlying apartment. She claims that Ramon Victoria was her father-in-law, and that she resided with him in premises, along with his son and her late husband Luis Victoria, from 2016 until their deaths on July 12, 2018, and July 16, 2018, respectively. Respondent further alleges that she is both the executor and sole heir of her husband's estate and therefore is a partial owner and 33% distributee of the cooperative stock held by Ramon Victoria's estate. Ramon died intestate and had three children, including Petitioner, the administrator of the estate. Respondent argues that as a partial "owner of the subject premises," she is not a proper party to a summary proceeding, which must instead be brought as a partition action in supreme court.
As Petitioner correctly notes in opposition, Respondent's status as a distributee of Ramon's estate does not preclude a summary proceeding under the present facts. Whereas a joint owner of a real property generally cannot be evicted in a housing court by virtue of their status as a tenant in common (see Kos Dev., Inc. v Scott, 28 Misc.3d 138 [A] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]; Matter of Sevirolli, 31 A.D.3d 452 [2d Dept 2006]), a comparable rule does not apply in the context of cooperative apartments, which are considered personal property. The "owner" of a cooperative unit holds shares of stock in the corporation with title to the building and is merely the lessee of an appurtenant proprietary lease. Upon the death of the shareholder, the administrator of the estate has standing to evict the remaining occupants so long as they lack a right to continued possession under the proprietary lease (see In the Estate of Edwards, 6 Misc.3d 1039[A] [App Term, 1st Dept 2005]; Young v Carruth, 89 A.D.2d 466 [1st Dept 1982]).
Particularly instructive is the Appellate Term's holding in Saito v Doe, 71 Misc.3d 135 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021], in which the respondent lived in a cooperative apartment with her husband, who was the sole heir to the shares and lease associated with the unit following the death of the shareholder. The husband's application to the board for a transfer of the proprietary lease and shares to his name was denied, and the executor of the shareholder's estate then commenced a licensee holdover proceeding following service of a 10-day notice to quit. Prior to commencement, respondent's husband passed away. The lower court granted a motion to dismiss the proceeding, finding that the respondent did not qualify as a licensee. In reversing and awarding the executor summary judgment, the Appellate Term concluded that respondent's license to occupy the premises expired upon the death of the shareholder, and she held no independent possessory interest given the cooperative board's denial of her deceased husband's application to succeed to the tenancy, a requirement of the proprietary lease. Thus, the executor was entitled to summary judgment notwithstanding respondent's potential ownership interest in the shares appurtenant to the apartment (id).
As in Saito, Respondent has failed to demonstrate or even allege any entitlement to possession under the proprietary lease associated with the subject apartment. Moreover, Respondent by her own admission is not the sole heir to the shares and is entitled to at most a 33% distribution from the estate, rendering her ability to obtain a proprietary lease in her name a near impossibility. Accordingly, Respondent's motion to dismiss is denied.
As for Petitioner's motion for summary judgment, it must be denied at this juncture, as Petitioner failed to attach the proprietary lease or other secondary evidence sufficient to demonstrate an entitlement to possession of the subject premises. Moreover, it appears that Respondent may have resided in the premises in exclusive possession for over five years following her father-in-law's death, raising a factual question as to whether she meets the definition of a licensee or something more (see Hok Kwan Chu v Lee, 972 N.Y.S.2d 143 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; Rodriguez v Greco, 31 Misc.3d 136 [A] [App Term, 2d Dept, 9th & 10th Jud Dists 2011]).
The barely legible annexed stock certificate is insufficient on its own for this purpose as it does not identify the subject apartment or clearly convey a right to possession.
The matter is hereby released to Part X for trial part assignment. This constitutes the decision and order of the court.