Opinion
Index No. E2022008952
03-02-2023
Kaycee Properties, LLC, Plaintiff, v. Cameron Colon, "JOHN DOE", "JANE DOE" Intending to designate any occupants unknown to Plaintiff in the premises of which Plaintiff seeks possession, Defendants.
Paul M. Aloi, Esq., for the Plaintiff Craig D. Carson, Esq., for Defendant Cameron Colon
Unpublished Opinion
Paul M. Aloi, Esq., for the Plaintiff
Craig D. Carson, Esq., for Defendant Cameron Colon
DECISION AND JUDGMENT
Hon. Daniel J. Doyle, Supreme Court Justice
In this common law ejectment action, Plaintiff Kaycee Properties, LLC (hereinafter "Plaintiff) moves for summary judgment on its Complaint seeking to eject Cameron Colon (hereinafter "Defendant") from the premises located at 1946 East Main Street, Apt. 16, in Rochester, New York.
For the reasons set forth below, the motion is GRANTED.
Summary Judgment Standard
A party seeking summary judgment pursuant to CPLR Rule 3212 must make prima facie showing of entitlement to judgment as a matter of law and submit sufficient evidence to demonstrate the absence of any material issue of fact. (Iselin & Co. Inc v Landau, 71 N.Y.2d 420 [1988].) Summary judgment may only be granted when "it has been clearly ascertained that there is no triable issue of fact outstanding; issue finding, rather than issue determination, is its function". (Suffolk County Dep't of Soc. Servs. v James M., 83 N.Y.2d 178, 182 [1994].) Only when the proponent demonstrates entitlement to summary judgment, the opposing party must then demonstrate, generally by admissible evidence, the existence of an issue of fact requiring a trial. (Zuckerman v City of New York, 49 N.Y.2d 851 [1985].)
Relevant Facts
Plaintiff owns the building located at 1946 East Main Street, Rochester, New York. Plaintiff and Defendant entered into a lease agreement on May 23, 2022, wherein Plaintiff agreed to rent to the Defendant an apartment located at 1946 East Main Street, Apt. 16, in Rochester, New York on a month-to-month basis.
Warranty Deed (Exhibit A to the Summons and Complaint [NYSCEF Docket # 15]); Plaintiffs Affidavit of Robert Kase (NYSCEF Docket # 13) at «[«[ 2-3; Affidavit of Cameron Colon (NYSCEF Docket # 23) at «[ 5,9; Exhibit B to the Summons and Complaint (NYSCEF Docket # 15).
Plaintiff terminated the lease by serving a termination notice on July 28, 2022 informing the Defendant that the lease would expire on October 31, 2022, and requiring Defendant and any other tenants to vacate the premises. Defendants failed to vacate the premises at the end of the lease term. After the conclusion of the term (on October 31, 2022) the Plaintiff did not accept additional rental payments.
Plaintiffs Affidavit of Robert Kase (NYSCEF Docket # 13) at 1 4; Exhibit C to the Summons and Complaint (NYSCEF Docket # 4); Affidavit of Service; Attorney Affirmation in Reply (NYSCEF Docket # 24) at1 4.
Plaintiffs Affidavit of Robert Kase (NYSCEF Docket # 13) at 11 4, 5;
Thereafter the Plaintiff filed and served the Summons and Complaint alleging that Plaintiff owned the subject property, Defendant(s) remained in possession after the expiration of the lease term, and that Plaintiff was not seeking additional rent. Defendant served an Answer with general denials and no affirmative defenses or counterclaims.
Conclusions of Law
"To prevail on a cause of action for ejectment, a plaintiff must establish that "(1) it is the owner of an estate in tangible real property, (2) with a present or immediate right to possession thereof, and (3) the defendant is in present possession of the estate" (Noamex, Inc. v. Domsey Worldwide, Ltd., 192 A.D.3d 817, 819, 144 N.Y.S.3d 77; see City of New York v. Anton, 169 A.D.3d 999, 1001-1002, 95 N.Y.S.3d 248; RPAI Pelham Manor, LLC v. Two Twenty Four Enters., LLC, 144 A.D.3d 1125, 1126, 42 N.Y.S.3d 267)." (City of New York v. Prudenti's Rest, on the River, Inc., 203 A.D.3D 1127 [2nd Dept. 2022].)
Here, the Plaintiff met its initial burden in establishing it was the owner of the property, had an immediate right of possession, and the Defendant was possessing the apartment and refused to vacate. The burden then shifted to the Defendant to establish a material issue of fact. The Defendant failed to meet this burden.
The Defendant argues that he was entitled a six-month notice of the cancellation of the lease agreement, citing Kosa v. Legg (12 Misc.3d 369 [Kings Cty 2006]). The case is inapposite and to the extent it would require a six-month notice of termination of a month-to-month lease as a predicate to maintaining an ejectment action the Court declines to follow that reasoning.
Real Property Law § 226-c states that "[w]henever a landlord . . . does not intend to renew the tenancy, the landlord shall provide written notice as required in subdivision two of this section". Section 2 requires that whenever a tenant "has occupied the unit for more than two years or has a lease term of at least two years, the landlord shall provide at least ninety days' notice." (RPL § 226-c.) The express terms of the statute do not limit its application to actions brought as summary proceedings pursuant to Article 7 of the Real Property Actions and Proceedings Law. It is undisputed that the Plaintiff herein provided the requisite ninety-day notice to terminate the lease, thus complying with RPL § 226-c. On October 31, 2022, the lease expired (pursuant to the terms of the notice Defendant concedes he received).
Housing Stability and Tenant Protection Act (L.2019 Ch. 36 eff. June 14, 2019).
The statutorily required notice of ninety-days (RPL § 226-c) was sufficient to convert the month-to-month tenancy to one that was for a fixed and definite term. No other notice was required. (Alleyne v. Townsley, 110 A.D.2d 674, 675[2nd Dept. 1985]: "The common-law principles governing the ejectment action are unchanged, unless explicitly modified by statute. No statute abrogates the common-law rule that notice is unnecessary to maintain an ejectment action against a tenant who wrongfully holds over after expiration of a fixed and definite term (see, 13 Carmody-Wait 2d, NY Prac § 89:118). While the 30-day notice served on the defendant in September 1983 was intended by the landlords to comply with the requirements of Real Property Law § 232-a, being a condition precedent to maintaining summary eviction proceedings under RPAPL article 7, we agree with Special Term that this notice served equally well to convert the defendant's tenancy into one for a fixed and definite term.") At the conclusion of the lease term, Defendant improperly remained in possession of the premises in contravention of Plaintiffs superior right of possession. (City of New York v. Prudenti's Rest, on the River, Inc., supra.)
Thus, the Defendant has failed to establish the existence of a material, factual dispute which would require denial of the Plaintiffs motion for summary judgment.
Based upon the foregoing, upon consideration of all papers submitted by the parties, it is hereby
Notice of Motion (NYSCEF Docket # 1); Affidavit in Support (NYSCEF Docket # 13); Attorney's Affidavit in Support with exhibits (NYSCEF Docket #s 14-16); Memorandum of Law in Support (NYSCEF Docket # 17); Notice of Cross-Motion (NYSCEF Docket # 20); Attorney Affirmation in Support of Cross-Motion (NYSCEF Docket # 21); Plaintiffs Letter Memorandum in Response (NYSCEF Docket # 22); Affidavit of Cameron Colon (NYSCEF Docket # 23); Defendant's Affirmation in Reply (NYSCEF Docket # 24).
ORDERED that Kaycee Properties, LLC's motion for summary judgment is GRANTED; and it is further
ORDERED that the Plaintiff, Kaycee Properties, LLC, shall submit an Order reflecting the above by February 28, 2023.
Any prayers for relief not specifically addressed herein are DENIED.
This constitutes the Decision and Order of the Court.