BAYRIDGE AIR RIGHTS INC v. PARKHALYUK (2025)

ORDERED that the final judgment is affirmed, without costs.

Petitioner, a New York State assisted Mitchell-Lama housing development, commenced this licensee proceeding (see RPAPL 713 [7]) to recover possession of the subject apartment following a determination by the New York State Division of Housing and Community Renewal (DHCR) that respondent was not eligible for succession rights. Respondent filed an answer asserting a general denial, as well as specific affirmative defenses, including that petitioner failed to serve her with a proper predicate notice, that petitioner failed to join necessary parties, and that there had not been a final determination regarding respondent's succession rights claim because an Article 78 petition challenging the DHCR determination was pending. Petitioner moved to strike respondent's affirmative defenses and for summary judgment. Following the dismissal of respondent's Article 78 petition, the Civil Court (Agata Ewa Rumprecht-Behrens, J.), by order dated January 3, 2024, granted petitioner's motion in its entirety, and, on January 18, 2024, entered a final judgment awarding petitioner possession.

Respondent appeals from the January 3, 2024 order, contending, among other things, that respondent's minor daughter, who respondent claimed was listed as a co-applicant on the application submitted by respondent to petitioner for succession rights to the subject apartment, was a necessary party to the licensee proceeding for two reasons: (1) her daughter was an occupant of the apartment and (2) her daughter may have independent succession rights to the apartment. The appeal from the order is deemed to be from the final judgment (see CPLR 5512 [a]). Respondent and her daughter were evicted on October 21, 2024.

Pursuant to CPLR 1001 (a), a necessary party is a “person[ ] who ought to be [made a] part[y] if complete relief is to be accorded between the persons who are parties to the action or who might be inequitably affected by a judgment in the action.” Contrary to respondent's contention, her minor daughter's status as an occupant of the subject apartment does not make her a necessary party, because the absence of a minor occupant from an eviction proceeding in which his/her parent is a named party does not prevent the court from “accord[ing]” “complete relief ․ between the ․ parties,” or “inequitably affect[ ]” the minor occupant (CPLR 1001 [a]; see Daley v. Billinghurst, 5 Misc.3d 138[A], 2004 N.Y. Slip Op. 51621[U], *1, 2004 WL 2922343 [App. Term, 2d Dept., 2d & 11th Jud. Dists. 2004]; Kuprewicz v. Muktadir, 2002 N.Y. Slip Op. 40527[U], *2, 2002 WL 31940887 [App. Term, 2d Dept., 2d & 11th Jud. Dists. 2002]). To the extent that respondent's contention that, as an occupant, her daughter had to be named in the proceeding is based on an amendment to RPAPL 749 (1) that was included in the Housing Stability and Tenant Protection Act of 2019 (HSTPA) (L 2019, ch 36), effective June 14, 2019, we find that it lacks merit. Prior to the passage of the HSTPA, RPAPL 749 (1) stated that “[u]pon rendering a final judgment for petitioner, the court shall issue a warrant directed to the sheriff of the county or to any constable or marshal of the city in which the property, or a portion thereof, is situated, ․ describing the property, and commanding the officer to remove all persons, ․ to put the petitioner into full possession” (L 2018, ch 205, § 1). On June 14, 2019, RPAPL 749 (1) was amended by adding the phrase, “named in the proceeding” following the language, “commanding the officer to remove all persons” (L 2019, ch 36, pt M, § 19). In our view, this amendment did not overrule longstanding precedent that minors do not need to be named in eviction proceedings against their parents (see Daley v. Billinghurst, 2004 N.Y. Slip Op. 51621[U], *1; Kuprewicz v. Muktadir, 2002 N.Y. Slip Op. 40527[U], *2) because there is “an established presumption that the residence of the child is the residence of the parents” (Quiala v. Laufer, 180 A.D.2d 31, 34, 584 N.Y.S.2d 786 [1st Dept. 1992]).

Moreover, this court lacks the authority to determine the succession rights claims of respondent or her minor daughter, as an alleged co-applicant for succession rights, because the DHCR “is vested with exclusive jurisdiction to determine remaining-family-member claims in State-assisted Mitchell-Lama housing” (St. Mark's Place Hous. Co., Inc. v. Moultrie, 34 Misc.3d 140[A], 2012 N.Y. Slip Op. 50053[U], *1, 2012 WL 149328 [App. Term, 2d Dept., 2d, 11th & 13th Jud. Dists. 2012] [internal quotation marks omitted]; see Starrett City, Inc. v. Smith, 25 Misc.3d 42, 44-45, 889 N.Y.S.2d 362 [App. Term, 2d Dept., 2d, 11th & 13th Jud. Dists. 2009]). As neither DHCR nor the Article 78 court determined that respondent's daughter has succession rights, she is not a necessary party to the licensee proceeding.

Respondent's assertion that the Civil Court lacked subject matter jurisdiction because she was entitled to be served with a 30-day notice to quit, rather than a 10-day notice, is also without merit. It is well settled that the failure to serve a proper predicate notice does not implicate subject matter jurisdiction, but presents a defense to a licensee proceeding, which defense was raised in respondent's answer (see 433 W. Assoc. v. Murdock, 276 A.D.2d 360, 360-361, 715 N.Y.S.2d 6 [1st Dept. 2000]; Marmon Realty Group, LLC v. Khalil, 72 Misc.3d 136[A], 2021 N.Y. Slip Op. 50733[U], *1, 2021 WL 3236291 [App. Term, 2d Dept., 2d, 11th & 13th Jud. Dists. 2021]; Hernco, LLC v. Hernandez, 46 Misc.3d 137[A], 2015 N.Y. Slip Op. 50062[U], *3, 2015 WL 406823 [App. Term, 2d Dept., 2d, 11th & 13th Jud. Dists. 2015]; 716 Realty, LLC v. Zadik, 38 Misc.3d 139[A], 2013 N.Y. Slip Op. 50194[U], *2, 2013 WL 530380 [App. Term, 2d Dept., 2d, 11th & 13th Jud. Dists. 2013]). Here, respondent was not entitled to a 30-day notice to quit, since she was not a tenant. While petitioner appears to have accepted respondent's rental payments after the tenant of record died, an “occupant's payment of rent, in and of itself, does not create a tenancy where none was contemplated” (Starrett City, Inc. v. Smith, 25 Misc.3d at 44-45, 889 N.Y.S.2d 362; see Matter of Rasic v. Roberts, 277 A.D.2d 120, 121, 717 N.Y.S.2d 41 [1st Dept. 2000]; Masaryk Towers Corp. v. Xiao Feng, 63 Misc.3d 133[A], 2019 N.Y. Slip Op. 50392[U], *1, 2019 WL 1322571 [App. Term, 1st Dept. 2019]; Gouverneur Gardens Hous. Corp. v. Belmlinsky, 23 Misc.3d 126[A], 2009 N.Y. Slip Op. 50534[U], *1, 2009 WL 824192 [App. Term, 1st Dept. 2009]). As a mere licensee, respondent was only entitled to a 10-day notice to quit (see RPAPL 713]).

To the extent that respondent argues in her reply brief that she was never served with a 10-day notice to quit, we decline to consider this argument, as respondent abandoned this contention by failing to raise it in her main brief (see e.g. Shaw v. Bluepers Family Billiards, 94 A.D.3d 858, 860, 941 N.Y.S.2d 691 [2d Dept. 2012]; Levy v. Kung Sit Huie, 54 A.D.3d 731, 732, 863 N.Y.S.2d 498 [2d Dept. 2008]).

Absent a determination that respondent has succession rights, she is precluded from asserting that defense in this summary proceeding. As there are no triable issues of fact warranting denial of petitioner's motion (see Bedford Gardens Co., LP v. Jacobowitz, 29 A.D.3d 501, 502-503, 815 N.Y.S.2d 149 [2d Dept. 2006]; St. Mark's Place Hous. Co., Inc. v. Moultrie, 2012 N.Y. Slip Op. 50053[U], *1; Cadman Towers, Inc. v. Kaplan, 54 Misc.3d 140[A], 2017 N.Y. Slip Op. 50159[U], *2, 2017 WL 488207 [App. Term, 2d Dept., 2d, 11th & 13th Jud. Dists. 2017]), we find no basis to disturb the Civil Court's determination.

Accordingly, the final judgment is affirmed.

TOUSSAINT, P.J. and MUNDY, J., concur. OTTLEY, J., taking no part.