Opinion
No. 2023-1330 K C
08-02-2024
Alexander Reich, Respondent, v. Dwight Redley, Occupant, and K & T Auto Repair, Inc., Sued Herein as John Doe, Appellant, Jane Doe, Occupant.
Chidi Eze, for appellant. Jonathan S. Roller, for respondent (no brief filed).
Unpublished Opinion
Chidi Eze, for appellant.
Jonathan S. Roller, for respondent (no brief filed).
PRESENT:: WAVNY TOUSSAINT, P.J., MARINA CORA MUNDY, LISA S. OTTLEY, JJ
Appeal from an order of the Civil Court of the City of New York, Kings County (Rachel Freier, J.), dated September 12, 2022. The order denied a motion by K & T Auto Repair, Inc., sued herein as John Doe, to dismiss the petition insofar as asserted against it in a summary proceeding commenced pursuant to RPAPL 713 (5).
ORDERED that the order is affirmed, without costs.
Petitioner commenced this post-foreclosure summary proceeding (RPAPL 713 [5]) in February 2022 to recover possession of commercial property, naming as respondents the former owner of the subject property as well as a John Doe and a Jane Doe. The former owner's tenant, K & T Auto Repair, Inc. (K & T) answered as John Doe. K & T moved to dismiss the petition insofar as asserted against it, alleging that it has a lease with the former owner and that petitioner is not the current owner of the subject premises. By order dated September 12, 2022, the Civil Court (Rachel Freier, J.) denied the motion.
On appeal, K & T argues that its lease was not affected by the foreclosure; that petitioner did not "argue[] or allege[]" that he voided the lease and that the record demonstrates that he had not voided the lease; and that petitioner did not have standing to commence this proceeding because the referee's deed he obtained after the foreclosure sale has a false jurat.
Contrary to K & T's argument, it entered into the lease subject to the foreclosure judgment and was therefore bound by the judgment of foreclosure and sale (see Lakeland W. Capital XI, LLC v Uvino, 69 Misc.3d 146 [A], 2020 NY Slip Op 51419[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2020]; BH 2628, LLC v Zully's Bubbles Laundromat, Inc., 57 Misc.3d 63 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]). The issue of whether the lease has been voided is a factual question not entitled to consideration at this juncture, as it was raised for the first time on appeal (see Nationwide Ins. Co. v New York Lighter Co., Inc., 68 A.D.3d 950 [2009]; ACH Chiropractic, P.C. v Nationwide Ins., 76 Misc.3d 128 [A], 2022 NY Slip Op 50782[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]) and, in any event, cannot be determined on this record. Finally, K & T has not demonstrated, as a matter of law, that the alleged problem with the jurat on the referee's deed (see Reich v Reilly, Sup Ct, Kings County, November 4, 2022, amended November 15, 2022, Knipel, J., index No. 528800/21) requires the dismissal of the petition (see Executive Law § 142-a).
Accordingly, the order is affirmed.
TOUSSAINT, P.J., MUNDY and OTTLEY, JJ., concur.