Opinion
No. 2013–2727 OR C.
04-16-2015
Carlos TELLO, Respondent, v. Teresa DYLAG, Appellant.
Opinion
Appeals from a final judgment of the Justice Court of the Town of Cornwall, Orange County (Francis Navarra, J.), entered January 9, 2013, and from an order of the same court dated March 12, 2013. The final judgment awarded petitioner possession and the sum of $48,110.40 in a nonpayment summary proceeding. The order denied occupant's motion to vacate the final judgment and dismiss the petition.
ORDERED that the final judgment is reversed, without costs, the branch of occupant's motion seeking to vacate the final judgment is denied as academic, and the branch of occupant's motion seeking to dismiss the petition is granted.
In 2012, petitioner commenced this nonpayment summary proceeding, alleging that occupant was a tenant of the subject premises pursuant to a written lease agreement and that occupant had failed to pay the rent for the preceding seven months. On December 19, 2012, the parties appeared before the Justice Court, during which court proceeding occupant specifically denied that she had ever been a tenant and asserted instead that she had invested in the house with petitioner as part of a joint venture to sell the house for profit, and that she was to receive part of the profits when the house was sold. At the conclusion of that proceeding, the Justice Court awarded landlord a final judgment of possession and the sum of $47,990.40, plus costs. A final judgment awarding petitioner possession and the sum of $48,110.40 was subsequently entered.
While the Justice Court may have considered the above-described court proceeding to have constituted a trial, the record indicates that the parties were not sworn (see Platinum Ridge Hoa, Inc. v. Rovenskiy, 24 Misc.3d 136 [A], 2009 N.Y. Slip Op 51501[U] [App Term, 2d, 11th & 13th Jud Dists 2009] [all persons testifying in a civil action must be sworn] ). Occupant's assertions at that appearance—which the court should have, in the exercise of its discretion, treated as her oral answer to the petition—that she was not a tenant and that, instead, the parties were joint venturers in the subject property, directly contradicted the allegations in the petition. In a summary proceeding, “[w]here triable issues of fact are raised, they shall be tried” (RPAPL 745 ; see also Vicky Inc. v. Haddad, 32 Misc.3d 141[A], 2011 N.Y. Slip Op 51609[U] [App Term, 9th & 10th Jud Dists 2011] ). Consequently, there was no basis to award a final judgment to petitioner at the conclusion of that proceeding and, thus, the final judgment must be reversed.
In view of the reversal of the final judgment, the branch of occupant's subsequent motion seeking to vacate the final judgment is denied as academic.
In support of the branch of occupant's motion seeking to dismiss the petition upon the ground that, contrary to the assertions made in the petition, there was no landlord-tenant relationship between the parties, occupant attached a December 23, 2005 agreement, signed by both parties, describing petitioner as “purchaser” and occupant as “joint venturer” regarding the subject premises, which agreement stated that the parties desired to “form[ ] a union for the purposes of repairing, maintaining and occupying said property for the further purpose of selling same for profit to be shared among them.” Among other things, the agreement allowed occupant to live in the premises for one year and provided that she would pay the mortgage, property taxes and any carrying charges during that time. The agreement further provided that, after each party was reimbursed for various expenses, including repairs and improvements, the parties would split the profits from the sale of the property. The agreement also set forth that occupant could continue living at the premises at the end of the first year upon written permission of petitioner. In opposition to the motion, petitioner did not deny the existence of this agreement, but argued, in essence, that the agreement constituted a lease, as it gave occupant the exclusive right to occupy the premises and that, upon expiration of that “lease,” occupant became a month-to-month tenant. The court denied occupant's motion, finding that the parties' positions were “equivalent to” a landlord-tenant relationship.
As noted, petitioner does not dispute the existence of the agreement submitted by occupant, which provides that each side would contribute money and/or labor towards the property with the view of selling that property, and that each party would share in the profits from the sale. Thus, while the agreement did grant occupant the exclusive right to occupy the premises for a certain time, the agreement does not, on its face, establish a landlord-tenant relationship, but rather a joint venture between the parties (see 16 N.Y. Jur 2d, Business Relationships § 2117 ; 48A CJS Joint Ventures §§ 1, 7 ; 52 CJS Landlord & Tenant § 9 ). Consequently, there was no basis for a summary proceeding (see RPAPL 711, 713 ).
Furthermore, even if the agreement could be construed as establishing a landlord-tenant relationship in addition to a joint venture, the petition alleges that occupant is in possession and owes rent pursuant to a written lease agreement. The petition fails to allege that the agreement had expired prior to the commencement of the proceeding, and it did not set forth any facts giving rise to a subsequent tenancy. “In view of these defects, the petition, which was not amended, did not adequately put the court and [occupant] on notice of [petitioner's] claim and should have been dismissed” (McFadden v. Sassower, 26 Misc.3d 141[A], 2010 N.Y. Slip Op 50316[U], *2 [App Term, 9th & 10th Jud Dists 2010]; see also RPAPL 741 [a petition must state, among other things, the interest of the respondents and the facts upon which the proceeding is based]; Joseph M. d'Assern Hous. Corp. v. Day, 24 Misc.3d 132[A], 2009 N.Y. Slip Op 51377[U] [App Term, 9th & 10th Jud Dists 2009] ; Jeffco Mgt. Corp. v. Local Dev. Corp. of Crown Hgts., 22 Misc.3d 141[A], 2009 N.Y. Slip Op 50455[U] [App Term, 2d, 11th & 13th Jud Dists 2009] ).
Accordingly, the final judgment is reversed, the branch of occupant's motion seeking to vacate the final judgment is denied as academic, and the branch of occupant's motion seeking to dismiss the petition is granted.
TOLBERT, J.P., GARGUILO and CONNOLLY, JJ., concur.