1274 51 REALTY LLC v. John and Jane Doe, Respondents/Undertenants. (2007)

Petitioner commenced this licensee holdover proceeding pursuant to RPAPL § 713[7] by service of a Notice of Petition and Petition after service of a notice to quit seeking possession of “All rooms located in the Basement space in the premises known as 1270 51st Street, Brooklyn, New York.” Respondent now moves to dismiss the petition on the ground that the notice to quit was jurisdictionally defective.   Petitioner cross-moves for summary judgment and for a severance of all claims for use and occupancy.

Petitioner's submissions demonstrated that a notice to quit was served on all respondents by October 20, 2006, which in relevant part, provided as follows:

PLEASE TAKE NOTICE, that on or before November 6, 2006 you and all other persons occupying under you are required to quit and remove from the following described premises.

The All rooms located in the Basement space in the premises known as 1270 51st Street, Brooklyn, New York.

PLEASE TAKE FURTHER NOTICE, that you are in possession of the said property as a licensee of Saul Greenfeld, who thereafter died and his surviving spouse thereafter transferred title out of the property which title has now since vested in 1274 51 Realty LLC, the person, party and/or entity entitled to possession of the property, and that you are no longer entitled to remain as a Licensee as you license has been revoked.

PLEASE TAKE FURTHER NOTICE, that you now remain in possession of the property without the permission and/or consent of the undersigned, the person, party or entity entitled to possession thereof.

The notice to quit was signed by Abraham Raab, a member of 1274 51 Realty LLC.

In support of their claim that the notice to quit was jurisdictionally deficient, respondents raise two arguments.   First, they maintain that the notice did not apprize them that petitioner would commence eviction proceedings if they failed to timely vacate the premises.   Second, they argued that it did not specify the termination date of the license.   The court rejects both of these arguments.

 With respect to respondents' first argument, neither RPAPL § 713, nor any other statute, specifies the requirements of a notice to quit (see Helping Out People Everywhere, Inc. v. Deich, 160 Misc.2d 1052, 1054, 615 N.Y.S.2d 215 [App. Term, Second Dep't 1994];  Katz v. Grifa, 156 Misc.2d 203, 206, 591 N.Y.S.2d 758 [Civ.Ct., New York Co., 1992, Kapnick, J.];  A & Z Realty Co. v. Murphy, N.Y.L.J. June 19, 1991, p. 25, col. 2 [Civ.Ct., Bronx Co.,];  Austin v. Allen, N.Y.L.J., Nov. 18, 1989, p. 23, col. 3 [Civ.Ct., Rich. Co.] ).  RPAPL § 713, in relevant part, provides only that “[a] special proceeding may be maintained under this article after a ten-day notice to quit has been served․” (RPAPL § 713).   Respondents' reliance on RPAPL § 232-a is misplaced.   While RPAPL § 232-a requires that a notice to terminate a monthly tenancy in the City of New York warn the tenant that “unless the tenant removes from such premises on the day on which his term expires the landlord will commence summary proceedings under the statute to remove such tenant therefrom”, this proceeding does not involve a monthly tenancy.   Petitioner commenced this proceeding pursuant to RPAPL § 713[7], alleging that respondents were licensees whose licence had been revoked.

In Reifield Thompson & Riverside, Inc. v. Ho., N.Y.L.J., 8/14/95, p. 28, col. 5 [App. Term., 1st Dep't], perhaps the only appellate case directly on point, the court held that “[t]he absence of a statement in the notice that landlord would commence eviction proceeding in the event respondents failed to vacate did not render the notice jurisdictionally defective' particularly since the governing statute, RPAPL § 713 did not require such a statement. ․” (id.).   This holding is consistent with the familiar cannon of statutory construction that “failure of the Legislature to include a matter within a particular statute is an indication that its exclusion was intended” (Pajak v. Pajak, 56 N.Y.2d 394, 397, 452 N.Y.S.2d 381, 437 N.E.2d 1138 [1982], citing McKinney's Statutes § 74;  see also, Weingarten v. Board of Trustees of New York City Teachers' Retirement System, 287 A.D.2d 14, 19, 733 N.Y.S.2d 136 [1st Dep't 2001] ).   While there are cases which support respondents' position (see, e.g., First Federal Sav. and Loan v. Souto, 162 Misc.2d 224, 227, 616 N.Y.S.2d 562 [Civ.Ct., New York County, 1994, Payne, J.];  Katz v. Grifa, supra;  see also, Washington Mut. Bank, F.A. v. Hanspal, 2007 N.Y. Slip Op. 50056(U), 2007 WL 93164 [District Court, Nassau County, Fairgrieve, J.] ), this court chooses to adopt the holding in Reifield Thompson & Riverside, Inc., and concludes that there is no basis to construe RPAPL § 713 as requiring a notice to quit to apprize a licensee that eviction proceedings will be commenced if he or she fails to timely vacate the premises.

 Respondent's second argument is rejected for the same reasons.   Again, since RPAPL § 713 does not specify any requirements of a notice to quit, the court will not construe the statute as requiring a notice to quit to specify the termination date of a license.   Indeed, in the Appellate Term for the Second Department specifically held a notice to quit that did not contain a definite termination date was not jurisdictionally defective (Helping Out People Everywhere, Inc. v. Deich, 160 Misc.2d 1052, 1054, 615 N.Y.S.2d 215 [App. Term, Second Dep't 1994];  see also A & Z Realty Co. v. Murphy, supra.).

 Here, the notice to quit clearly informed respondents that their license had been revoked.   It described the premises sought to be recovered and identified the petitioner as the entity entitled to possession.   It was signed by a member of the petitioner limited liability corporation and gave the respondents more than the required ten days to quit the premises from the date they were served.   The notice to quit was therefore legally sufficient.

 Turning to petitioner's cross-motion for summary judgment, petitioner established a prima facie case of entitlement to a judgment of possession as a matter of law pursuant to RPAPL § 713[7] by tendering evidentiary proof in admissible form demonstrating the absence of any triable issues of fact (see Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980];  Liguori v. City of New York, 202 A.D.2d 647, 610 N.Y.S.2d 842 [2nd Dep't 1994] ).   In order to defeat the motion, respondents were required to raise a triable issue of fact by laying bare and revealing their proofs and demonstrating that the defenses alleged in their answer were real and capable of being established at trial (see Friends of Animals v. Associated Fur Mfrs., 46 N.Y.2d 1065, 1067-1068, 416 N.Y.S.2d 790, 390 N.E.2d 298 [1979];  Spearmon v. Times Square Stores Corp., 96 A.D.2d 552, 465 N.Y.S.2d 230 [2nd Dep't 1983];  Di Sabato v. Soffes, 9 A.D.2d 297, 301, 193 N.Y.S.2d 184 [1st Dep't 1959] ).

 Respondents' opposition papers are devoid of admissible proof.   While respondents' submitted their verified answer in opposition to the motion, their answer was verified by an attorney.  “The standards governing motions for summary judgment are applicable to special proceedings generally” (Brusco v. Braun, 199 A.D.2d at 31-32, 605 N.Y.S.2d 13 [1st Dep't 1993] ) and it is well settled that a pleading verified by an attorney “is of no probative value for purposes of summary determination” (id. at 32, 605 N.Y.S.2d 13;  see also Zuckerman v. City of New York, 49 N.Y.2d 557, 563, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980];  Henriquez v. Purins, 245 A.D.2d 337, 666 N.Y.S.2d 190 [2d Dept.1997].)

The court has considered respondents' remaining arguments and finds them to be without merit.

For all of the above reasons, it is hereby

ORDERED that respondents' motion to dismiss is DENIED;  it is further

ORDERED that petitioner's motion for summary judgment is GRANTED and petitioner is awarded a judgment of possession.   A warrant of eviction shall issue forthwith the execution of which shall be stayed for five (5) days;  and it is further

ORDERED that all claims for use and occupancy are hereby dismissed without prejudice, with leave granted to petitioner to reinstitute such claims in a separate action.

This constitutes the decision and order of the court.

PETER PAUL SWEENEY, J.