POULAKAS v. ORTIZ (2009)

In this summary proceeding for nonpayment of rent, petitioner Nick Poulakas (“petitioner”) seeks purported rent arrears from respondent “ “Edwin Ortiz, as Next of Kin to Ramona Ortiz” (“ “respondent”). Edwin Ortiz is the occupant of the rent-stabilized premises located at 601 Ocean Avenue, Apt. 5C, Brooklyn, N.Y. (“premises”), and is the son of the deceased rent-stabilized tenant, Ramona Ortiz. Respondent Edwin Ortiz initially filed an oral pro se answer raising, among other things, a claim that he has succession rights to the premises, and subsequently retained counsel.

Respondent now moves for summary judgment dismissing this proceeding, and, in the alternative, for an order granting respondent leave to file an amended answer. Respondent argues that this proceeding should be dismissed because there is no landlord-tenant relationship between petitioner and Edwin Ortiz in his individual capacity. Respondent claims that the landlord has refused to recognize him as a successor-in-interest to Ramona Ortiz's rent-stabilized tenancy and that he has no contractual obligation to pay rent because the landlord has not provided him with a lease.

Respondent also argues that this proceeding should be dismissed because no grounds exist to commence an action pursuant to RPAPL § 711(2) against “next of kin” or when a person is in possession of the premises.

Petitioner opposes respondent's motion and makes a cross-motion seeking leave to amend the pleadings to name Edwin Ortiz as “issue” of Ramona Ortiz and as an occupant of the premises. Petitioner asserts that, as “issue” or “next of kin” of the deceased tenant, Edwin Ortiz is a proper party to this proceeding pursuant to RPAPL § 711(2). Petitioner maintains that it has no obligation to offer a lease to Edwin Ortiz while there is a lease agreement between the landlord and Ramona Ortiz that is still in effect. Petitioner also asserts that RPAPL § 711(2) is applicable in this case because Edwin Ortiz was an occupant already “in possession” of the premises at the time of Ramona Ortiz's death and did not “take possession” after his mother's death. The Court notes that petitioner has not opposed that branch of respondent's motion seeking leave to amend his oral pro se answer.

The following facts are not in dispute: (1) that Ramona Ortiz was the rent-stabilized tenant-of-record; (2) that Ramona Ortiz's lease with petitioner has not yet expired; (3) that Ramona Ortiz died more than three months prior to commencement of this proceeding; (4) that Ramona Ortiz died intestate and no person was appointed as administrator or executor of the estate; (5) that the rent demanded by petitioner is primarily for the periods prior to Ramona Ortiz's death; and (6) that Edwin Ortiz occupies the premises and is the son of Ramona Ortiz.

The motion and cross-motion are consolidated for disposition.

The Law and Its Application

RPAPL § 711 sets forth the grounds for maintaining a summary eviction proceeding where a landlord-tenant relationship exists. RPAPL § 711(2) specifically addresses a tenant's default in the payment of rent. This section provides in relevant part that “․ [w]here a tenant dies during the term of the lease and rent due has not been paid and no representative or person has taken possession of the premises and no administrator or executor has been appointed, the proceeding may be commenced after three months from the date of death of the tenant by joining the surviving spouse or if there is none, then one of the surviving issue or if there is none, then any one of the distributees.” See RPAPL § 711(2).

The language of the statute itself, its legislative history, and the case law involving RPAPL § 711(2) are silent as to the two essential questions raised by respondent's motion and petitioner's cross-motion: (1) whether the estate of the deceased tenant is a necessary party to this non-payment proceeding; and (2) whether the phrase “no representative or person has taken possession of the premises” means that a proceeding may be maintained under RPAPL § 711(2) only where there are no occupants in the premises.

It is well established that upon the death of the tenant-of-record, the lease does not terminate but becomes the personal property of the deceased tenant's estate. Joint Properties Owners, Inc. v. Deri, 113 A.D.2d 691, 497 N.Y.S.2d 658 (1st Dept.1986); Schnee v. Jonas Equities, Inc., 109 Misc.2d 221, 442 N.Y.S.2d 342 (App.Term, 2nd Dept., 1981). The executor, administrator, or other legal representative of the estate of the deceased tenant, may remain in possession until the expiration of the current lease, but may not renew the lease. Rubinstein v. 160 West End Owners Corp., 74 N.Y.2d 443, 548 N.Y.S.2d 155, 547 N.E.2d 357 (1989); Dekovessey v. Coronet Properties Co., 69 N.Y.2d 448, 515 N.Y.S.2d 740, 508 N.E.2d 652 (1987). Generally, a landlord seeking to evict a person in possession of the premises after the death of the tenant-of-record, should join the estate of the deceased tenant unless the lease has been terminated, cancelled, surrendered, or assigned. Rosefan Const. Corp. v. Salazar, 114 Misc.2d 956, 452 N.Y.S.2d 1016 (Civ.Ct., Queens County, 1982); 100 West 72nd St. Assocs. v. Murphy, 144 Misc.2d 1036, 545 N.Y.S.2d 901 (Civ.Ct., N.Y. County, 1989).

The appellate authority of the First and Second Departments is divided on the issue of whether the estate of the deceased tenant is a necessary party to a holdover proceeding to recover possession of the premises when there is an unexpired lease between the landlord and the deceased tenant. (See BK-8B Partners, L.P. v. “Doe”, 2007 N.Y, Slip Op. 32763[U] (Civ.Ct., Kings County)). The Appellate Division, First Department, has held that the estate of the deceased tenant-of-record is a necessary party to a licensee holdover proceeding brought while the lease was still in effect. Westway Plaza Associates v. Doe, 179 A.D.2d 408, 578 N.Y.S.2d 166 (1st Dept., 1992). However, the Appellate Term, Second Department, has found that under similar circumstances, the estate is a proper party, but not a necessary party to a holdover proceeding. Ryerson Towers, Inc. v. Estate of Brown, 160 Misc.2d 107, 612 N.Y.S.2d 99 (App.Term, 2nd Dept., 1994). The Appellate Term, Second Department, held in pertinent part that:

“․ it was not necessary for landlord to join tenant's estate in order to maintain a proceeding to recover possession of the apartment. Tenant's son is in sole possession of the apartment in his individual capacity and not as a representative of his mother's estate. A tenant not in possession is not a necessary or indispensable, although he is of course a proper, party.' (Reichman v. Crane, 3 Misc.2d 731, 733, 157 N.Y.S.2d 254).” Id at 108, 157 N.Y.S.2d 254.

There is not any reported appellate case law in either the First or Second Departments addressing the issue of whether the estate of the deceased tenant is a necessary party to a non-payment proceeding.

Some lower courts have held that the estate of the deceased tenant is a necessary party to a summary eviction proceeding for non-payment of rent. In East Harlem Pilot Block Building 1 H.D.F.C., Inc. v. Serrano, 153 Misc.2d 776, 583 N.Y.S.2d 751 (Civ.Ct., N.Y. County, 1992), the court found that in order for a landlord to maintain a summary eviction proceeding for non-payment of rent brought pursuant to RPAPL § 711(2), the landlord first must determine whether an estate representative has been appointed and must ascertain the existence and identity of any surviving spouse, children or distributees. The court also found that if no such representative or person exists, then the landlord must petition the Surrogate's Court pursuant to SCPA §§ 1001(8) and 1002 to have the Public Administrator appointed as the personal representative of the decedent's estate, prior to the commencement of a summary proceeding for non-payment of rent against the estate, which must name the Public Administrator in his/her representative capacity, as respondent. Id. at 778-780, 583 N.Y.S.2d 751; see also E.P.T.L. § 11-3.1. Ultimately, the court denied petitioner's application for a default judgment of possession against a tenant who was deceased at the time the summary proceeding was commenced and held that petitioner could not avail itself of the relief afforded by RPAPL § 711(2) because petitioner had not yet determined whether an estate representative had been appointed, had not petitioned for the appointment of the Public Administrator, and had no information regarding survivors. Id. at 778-780, 583 N.Y.S.2d 751.

Similarly, in Mandalay Leasing L.P. v. Gibson, 2003 N.Y. Slip Op. 50599[U] (Civ.Ct., Queens County), the court vacated a stipulation of settlement and dismissed a non-payment proceeding brought against the “next of kin and/or distributee” of the deceased tenant-of-record pursuant to RPAPL § 711(2). The court specifically held that petitioner could not resort to naming a distributee because it had failed to demonstrate that no executor or administrator was appointed and that there was no surviving spouse or issue. See Mandalay Leasing L.P. v. Gibson, 2003 N.Y. Slip Op. 50599[U] (Civ.Ct., Queens County).

The case at bar differs from the above-cited non-payment cases in that petitioner has asserted and respondent, Edwin Ortiz, concedes that there is no administrator, executor or surviving spouse and that he is in fact the son (or “issue”) of the deceased tenant-of-record, Ramona Ortiz. It is also undisputed that the deceased tenant's lease is still in effect and that petitioner waited the requisite three-month period before commencing this non-payment proceeding. Accordingly, the Court finds that petitioner has met the statutory standard and may avail itself of the relief afforded by RPAPL § 711(2). Furthermore, it is this Court's opinion that it would have been necessary to name the estate of the deceased tenant and sue the personal representative of the estate only if petitioner had not met the requirements of RPAPL § 711(2) (e.g. if the non-payment proceeding had been commenced within the first three months of the tenant's death).

The Court also finds that it is a de minimis defect that petitioner named respondent as “Edwin Ortiz as Next of Kin to Ramona Ortiz” rather than “Edwin Ortiz as Issue of Ramona Ortiz” and “Edwin Ortiz, Individually as Occupant.” The Appellate Term, Second Department, has clearly held that “[o]rdinarily, a de minimis defect in a predicate notice or petition that does not confuse the tenants or hinder their defense is to be overlooked.” Bosco v. Merle, 2009 N.Y. Slip Op. 51630[U] (App.Term, 2nd Dept.), citing Oxford Towers Co. v. Leites, 41 A.D.3d 144, 837 N.Y.S.2d 131 (1st Dept., 2007) and Fa Wah Mgt. Inc. v. Alvarez, 18 Misc.3d 132[A], 2008 N.Y. Slip Op. 50086 [U] (App. Term, 2nd & 11th Jud. Dists., 2008); see also CPLR § 3025(c). Here, it is not disputed that Edwin Ortiz is the son or “issue” of Ramona Ortiz, that he is the occupant of the subject premises, and that there is no person authorized to act on behalf of the estate of Ramona Ortiz in possession of the premises. As such, an amendment of the caption to reflect respondent as “Edwin Ortiz as Issue of Ramona Ortiz” and “Edwin Ortiz, Individually as Occupant” would not create confusion or hinder the respondent's defense. The Court also notes that Edwin Ortiz filed his oral pro se answer in his individual capacity and has not raised a defense based upon a purported lack of personal jurisdiction.

With respect to the second question raised by the parties regarding the meaning of the phrase “no representative or person has taken possession of the premises,” the Court must examine the language of RPAPL § 711(2) and must be guided by the intent of the legislature.

When interpreting a statute, the words used by the legislature are to be given their usual and commonly understood meaning unless the statute plainly indicates that a different meaning was intended. Duell v. Condon, 84 N.Y.2d 773, 622 N.Y.S.2d 891, 647 N.E.2d 96 (1995), citing SIN, Corp. v. Dept. of Finance, 71 N.Y.2d 616, 528 N.Y.S.2d 524, 523 N.E.2d 811 and Price v. Price, 69 N.Y.2d 8, 511 N.Y.S.2d 219, 503 N.E.2d 684. The concurrent usage of the words “no representative or person has taken possession of the premises and no administrator or executor has been appointed” creates an ambiguity in RPAPL § 711(2), requiring this Court to construe the statute in a manner which would further the legislative intent and purpose. It is fundamental that in “the interpretation of statutes, the spirit and purpose of the act and the objects to be accomplished must be considered. The legislative intent is the great and controlling principle.” Price v. Price, 69 N.Y.2d 8, 511 N.Y.S.2d 219, 503 N.E.2d 684 (1986), citing People v. Ryan, 274 N.Y. 149, 8 N.E.2d 313 and Petterson v. Daystrom Corp., 17 N.Y.2d 32, 268 N.Y.S.2d 1, 215 N.E.2d 329 (where the court found that a literal reading of the statute without regard to the purpose of the provision leads to an unjust result).

The “deceased tenant” section of RPAPL § 711(2) is derived from Section 1410(7) of the former Civil Practice Act (CPA). Although there is a dearth of legislative history surrounding the enactment of CPA § 1410(7) in 1944, it is this Court's opinion that the “deceased tenant” section of RPAPL § 711(2) was passed by the legislature in order to provide landlords with a simpler remedy of regaining possession of their leased premises when the tenant dies intestate during the term of the lease, and to avoid the costly and time-consuming process of petitioning the Surrogate's Court for the appointment of the Public Administrator and then suing the administrator. See Letter to Honorable Charles D. Breitel, Counsel to the Governor, March 22, 1944, reprinted in N.Y.S. Stats. Bill Jacket Collection, 1944, Chap.742.

After considering the full language of the “deceased tenant” section of RPAPL § 711(2) and the legislative intent and purpose of the statute, the Court concludes that the words “no representative or person has taken possession of the premises and no administrator or executor has been appointed” should be construed as meaning that there is no person either in possession of the premises on behalf of the estate or legally authorized to act on behalf of the estate. This interpretation is better aligned with the legislative purpose and intent of affording landlords a simpler remedy for recovering possession of an apartment for non-payment of rent where there is a current leasehold interest held by the estate of the deceased tenant and where there is no legal representative in place who may act on behalf of the estate. The Court finds that the legislature did not intend that the “deceased tenant” section of RPAPL § 711(2) be applied only in situations where the premises are vacant, as this would limit the remedial nature of the statute.

As a matter of dicta, this Court notes that upon the termination, expiration or surrender of the estate's leasehold interest, respondent may be able to assert his succession claim.¹ Respondent would become liable for the rent only once he has succeeded to the apartment, and is not personally liable for rent owed by the deceased tenant. See Edelstein & Son, LLC v. Levin, 8 Misc.3d 135(A), 2005 N.Y. Slip Op. 51190[U] (App.Term, 1st Dept.); see also 615 Nostrand Avenue Corp. v. Roach, 15 Misc.3d 1, 832 N.Y.S.2d 379 (App.Term, 2nd Dept., 2006). Given that there is no existing privity of contract between petitioner and Edwin Ortiz, petitioner therefore may not seek a monetary judgment against Edwin Ortiz, either individually or as “issue of Ramona Ortiz.” However, petitioner may seek a possessory judgment against Edwin Ortiz individually and as “issue of Ramona Ortiz” pursuant to RPAPL § 711(2). See e.g. Dulac v. Dabrowski, 4 A.D.3d 308, 774 N.Y.S.2d 487 (1st Dept., 2004) (the Appellate Division found that although the tenant's debt was discharged in bankrupcty, the landlord could maintain a summary eviction proceeding for non-payment of rent and could obtain a judgment that is solely possessory in nature based upon the tenant's breach of its obligation to pay rent); see also GDJ Realty Corp. v. Joseph, 10 Misc.3d 139(A) (App. Term, 2nd & 11th Jud. Dists., 2005), 2005 N.Y. Slip Op. 52202[U]. This is in keeping with the longstanding concept that “the primary purpose and intention of summary proceedings is the speedy and expeditious disposition of the issue as to the right of the landlord to the immediate possession of his real property.” Greak Park Corp. v. Goldberger, 41 Misc.2d 988, 246 N.Y.S.2d 810 (N.Y.C Civ.Ct., 1964); see also 3 Rasch, New York Landlord and Tenant, 4th ed. § 29:5, at 404.

Based upon the foregoing reasons, the Court denies that branch of respondent's motion seeking dismissal of this proceeding. The Court however grants the unopposed branch of respondent's motion seeking leave to file an amended answer raising, among other, things a succession claim, and deems the Proposed Verified Amended Answer (attached to respondent's motion as Exhibit F) timely served and filed nunc pro tunc. The Court also grants petitioner's cross-motion, and hereby permits amendment of the pleadings to name Edwin Ortiz as “issue” of Ramona Ortiz and as an occupant of the premises.

The parties are directed to appear in Part E, Room 509, on September 23, 2009 at 9:30 a.m. for referral to Part X for trial.

This constitutes the decision and order of the Court.

FOOTNOTES

1.  There has been no allegation by respondent that he has petitioned the Surrogate's Court to be appointed as administrator of his mother's estate. Presumably, had respondent done so he would have been able to surrender the estate's leasehold interest and then assert his succession claim in the appropriate forum.

INEZ HOYOS, J.