GAYLE v. FLYNN (2021)

Supreme Court, Appellate Term, New York,

Ronald GAYLE, Pauline Gayle and Olive Phillips, Respondents, v. Alicea FLYNN, Appellant, et al., Undertenants.

2019-1681 Q C

Decided: April 16, 2021

PRESENT: MICHELLE WESTON, J.P., WAVNY TOUSSAINT, DONNA-MARIE E. GOLIA, JJ.

The Legal Aid Society-Queens Office (Julia McNally and Janet E. Sabel of counsel), for appellant. Andrew G. Neal, Esq., for respondents (no brief filed).

ORDERED that the final judgment is reversed, without costs, and the matter is remitted to the Civil Court for the entry of a final judgment dismissing the petition.

In this holdover proceeding, which was commenced on July 25, 2017, the petition alleged that the lease “expired on July 31, 2017.” Following the trial, the Civil Court awarded landlords a final judgment of possession.

In order to maintain a holdover proceeding, the petition must allege that the lease had expired at the time the summary proceeding was commenced, and that the tenant held over without the landlord's permission (see RPAPL 711 [1]; Matter of Calvi v Knutson, 195 AD2d 828, 830 [1993]; Perrotta v Western Regional Off-Track Betting Corp., 98 AD2d 1, 2 [1983]; T & N Props., Inc. v Muldoon Indus., Inc., 13 Misc 3d 53 [App Term, 2d Dept, 9th & 10th Jud Dists 2006]). As the petition alleged that the lease had not yet expired at the time the proceeding was commenced, tenant properly argues that the petition should have been dismissed. We reach no other issue.

Accordingly, the final judgment is reversed and the matter is remitted to the Civil Court for the entry of a final judgment dismissing the petition.

WESTON, J.P., TOUSSAINT and GOLIA, JJ., concur.

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