Opinion
871 CA 20-00842
12-23-2021
Mohammad M. MASHEH, Plaintiff-Appellant, v. JHF MANAGEMENT, LLC, Joda Properties, LLC, Steve Ferraro and John H. Ferraro, Defendants-Respondents.
LEGAL SERVICES OF CENTRAL NEW YORK, INC., BINGHAMTON (GEORGE B. HADDAD OF COUNSEL), FOR PLAINTIFF-APPELLANT. KENNEY SHELTON LIPTAK NOWAK LLP, JAMESVILLE (LAUREN M. MILLER OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.
LEGAL SERVICES OF CENTRAL NEW YORK, INC., BINGHAMTON (GEORGE B. HADDAD OF COUNSEL), FOR PLAINTIFF-APPELLANT.
KENNEY SHELTON LIPTAK NOWAK LLP, JAMESVILLE (LAUREN M. MILLER OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, NEMOYER, AND CURRAN, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff, a month-to-month tenant at an apartment in a building owned and operated by defendants, commenced this action to recover damages arising from defendants’ actions in taking possession of the apartment and removing plaintiff's belongings from the premises and disposing of them. Plaintiff now appeals from an order denying his motion for summary judgment on his cause of action for wrongful eviction. We affirm.
Plaintiff contends that he was entitled to summary judgment on his wrongful eviction cause of action because he was a month-to-month tenant and defendants wrongfully evicted him by failing to commence a special proceeding (see RPAPL 711 ). Plaintiff further contends that the evidence established that he never intended to abandon the premises. We reject those contentions and conclude that plaintiff's own moving papers raise triable issues of fact whether he abandoned the subject premises (see generally Smith v. Hamasaki , 173 A.D.3d 1816, 1817, 104 N.Y.S.3d 817 [4th Dept. 2019] ; Gawron v. Town of Cheektowaga , 125 A.D.3d 1467, 1468, 4 N.Y.S.3d 789 [4th Dept. 2015] ).
On his motion, plaintiff bore the initial burden of establishing his prima facie entitlement to judgment as a matter of law and to "show that there is no defense to [his] cause of action" for wrongful eviction ( CPLR 3212 [b] ; see generally Winegrad v. New York Univ. Med. Ctr. , 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 [1985] ). "Abandonment in law depends upon the concurrence of two and only two factors; one, an intention to abandon or relinquish; and two, some overt act, or some failure to act, which carries the implication that owner neither claims nor retains any interest in the subject matter of the abandonment" ( City of Binghamton v. Gartell , 275 App. Div. 457, 460, 90 N.Y.S.2d 556 [3d Dept. 1949] ). Here, we conclude plaintiff's own motion papers raise questions of material fact whether he notified defendants of an intention to terminate his tenancy and, if so, whether he retracted that notification. There also are triable questions of fact whether plaintiff evidenced his abandonment of the premises by, inter alia, failing to respond to the calls and a notice from defendants regarding his status and by the condition in which he allegedly left the apartment. "Viewing the evidence in the light most favorable to defendant[s], the nonmoving part[ies]" ( Jackson v. Rumpf , 177 A.D.3d 1354, 1355, 112 N.Y.S.3d 403 [4th Dept. 2019] ), we conclude that plaintiff failed to meet his initial burden on the motion regardless of the sufficiency of defendants’ opposition papers (see generally Winegrad , 64 N.Y.2d at 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 ).