MHA REALTY LLC v. ROSTOKER (2021)

ORDERED that the final judgment is modified by vacating so much thereof as is against Hyman Rostoker and by providing that the petition is dismissed insofar as asserted against him; as so modified, the final judgment is affirmed, without costs.

Hyman Rostoker and Philip Rostoker, who were both named as tenants in this nonpayment proceeding, appeal from a final judgment which, after a nonjury trial, awarded landlord possession and $21,264.28 as against both of them.

The purpose of a nonpayment summary proceeding is to allow a landlord to recover possession of real property based upon its tenant's failure to pay rent “pursuant to the agreement under which the premises are held” (RPAPL 711 [2]; see 329 Union Bldg. Corp. v LoGuidice, 47 Misc 3d 1, 6 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; Patchogue Assoc. v Sears, Roebuck & Co., 37 Misc 3d 1 [App Term, 2d Dept, 9th & 10th Jud Dists 2012]). It is uncontested that Hyman Rostoker was not in possession of the premises, was not a party to the lease upon which the proceeding was based, and did not otherwise claim a right to possession of the premises. Thus, as appellants argue, this proceeding does not lie against Hyman Rostoker and the judgment, insofar as was entered against him, is vacated, and the petition, insofar as asserted against him, is dismissed.

Contrary to appellants' further contention, the record does not establish that landlord improperly claimed that the premises is a three-room apartment on its Division of Housing and Community Renewal registration (see Rent Stabilization Code § 2528.2 [a] [4]), as the testimony is clear that the unit, in fact, has three rooms. Appellants' arguments as to landlord's standing and the validity of the lease likewise lack merit.

We do not reach appellants' contention regarding the validity of the Gilbert Louzoun Revocable Living Trust, landlord's predecessor, as it would not affect appellants' legal obligations in this proceeding.

Accordingly, the final judgment is modified by vacating so much thereof as is against Hyman Rostoker and by providing that the petition is dismissed insofar as asserted against him.

ALIOTTA, P.J., WESTON and ELLIOT, JJ., concur.