Opinion
2020-629 W C
04-28-2022
SUNNYBROOK GARDENS OWNERS, INC., Respondent, v. Vijay SINGH, Appellant.
Vijay Singh, appellant pro se. Veneruso, Curto, Schwartz & Curto, LLP (Steven A. Accinelli of counsel), for respondent.
Vijay Singh, appellant pro se.
Veneruso, Curto, Schwartz & Curto, LLP (Steven A. Accinelli of counsel), for respondent.
PRESENT: TIMOTHY S. DRISCOLL, J.P., HELEN VOUTSINAS, BARRY E. WARHIT, JJ.
ORDERED that the final judgment is reversed, without costs, and the matter is remitted to the City Court for the entry of a final judgment dismissing the petition.
Petitioner, a cooperative organization, commenced this summary proceeding pursuant to RPAPL 713 (11), seeking to recover possession of an apartment on the ground that occupant entered into possession of the apartment as an incident to his employment as superintendent and that his employment had been terminated. At a nonjury trial, occupant testified that he had become a tenant of the subject, rent-stabilized apartment in 1985. Five years later, in 1990, he became an employee of petitioner's with his rent of $280 per month waived as part of his salary. While petitioner's agent testified that occupant's employment had been terminated, there was no evidence contradicting occupant's assertion that he did not enter into possession of the apartment as an incident to his employment by petitioner.
"[T]he burden is on the petitioner to establish prima facie that possession of the premises sought to be recovered was obtained as an incident to the occupant's employment; it is not the occupant's burden to establish that he entered into possession as a tenant" ( 350-352 S. 4th St., HDFC v Torres , 56 Misc 3d 90, 91-92 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017] [emphasis added]; see RPAPL 713 [11] ; Clearview Apt. Assoc., LP v Ocasio , 17 Misc 3d 23 [App Term, 2d Dept, 2d & 11th Jud Dists 2007]). As petitioner failed to establish, prima facie, that occupant had obtained possession as an incident to his employment, the judgment should be reversed and the petition dismissed.
In view of the foregoing, we reach no other issue.
Accordingly, the final judgment is reversed and the matter is remitted to the City Court for the entry of a final judgment dismissing the petition.
DRISCOLL, J.P., VOUTSINAS and WARHIT, JJ., concur.