A New York Probate Lawyer said this is an appeal from an order of the County Court of Delaware County entered June 23, 2006, which, among other things, dismissed petitioner’s application, in a proceeding pursuant to RPAPL article 7, to recover possession of certain real estate property. In August 2005, the parties entered into a written contract for the sale of certain real property by petitioner to respondent. Respondent took possession of the property and, when he failed to pay rent and taxes and maintain homeowner’s insurance as allegedly required by the parties’ agreement, a New York Estate Lawyer said that petitioner commenced an eviction proceeding in the Justice Court of the Town of Colchester, Delaware County. In settlement of that proceeding, the parties entered into a written “Rental Agreement” providing that respondent, as “tenant,” would maintain possession and pay $1,000 owed for back rent and $1,000 monthly for rent thereafter, plus $95 for taxes and $40 for homeowner’s insurance as additional monthly “rent.” The rental agreement further stated that respondent was to obtain a mortgage commitment by December 2005 and, if he failed to do so, the prior contract of sale would be “cancelled” and petitioner, as “landlord,” would be entitled to a warrant of eviction.
A New York Will Lawyer said that, after respondent failed to obtain a mortgage commitment, petitioner obtained a warrant of eviction in Justice Court awarding him possession of the property on the ground that respondent “stipulated to a mortgage commitment which has not been obtained.” Upon respondent’s appeal, County Court concluded that Justice Court did not have subject matter jurisdiction, dismissed the petition and rescinded the amended warrant of eviction. Petitioner appeals and we now affirm.
The issue in this case is whether petitioner can recover possession of the said real estate property which is the subject of the litigation.
A Queens Probate Attorney said the Court held that, when a landlord-tenant relationship exists, the landlord may maintain a special proceeding to remove a tenant if, as relevant here, “the tenant continues in possession of any portion of the premises after the expiration of his term” or “the tenant has defaulted in the payment of rent, pursuant to the agreement under which the premises are held, and a demand of the rent has been made”. The record herein, however, evinces that petitioner did not allege or prove either of those grounds—i.e., that respondent failed to pay rent or remained in possession after the expiration of his term; rather, petitioner sought and obtained a warrant to remove respondent as tenant based upon respondent’s “failure to obtain a mortgage commitment,” a ground that is not set forth in the statute. We note that summary landlord-tenant proceedings are “special proceedings governed entirely by statute and it is well established that there must be strict compliance with the statutory requirements to give the court jurisdiction”. Thus, even assuming that petitioner is correct that the parties amended the contract of sale to create a landlord-tenant relationship until the deed to the property was delivered, County Court properly dismissed the petition on the ground that Justice Court lacks subject matter jurisdiction over this proceeding.
Long Island Probate Lawyers said that even assuming the cross motion was timely filed, it was properly denied. A prima facie showing to warrant summary judgment foreclosure of a mortgage requires the movant to establish the existence of the mortgage and mortgage note, ownership of the mortgage, and the defendant’s default in payment. These plaintiffs do not have a note, have not demonstrated ownership of the mortgage and have not produced competent evidence of a default. Indeed, their witness was unable to state definitely that these plaintiffs even had an interest in the mortgage on which they sought to foreclose.
The court has considered appellants’ other arguments and finds them unavailing. Accordingly, the Court held that the order is affirmed, with costs.
If you have a claim or an action to recover possession of a real estate property, you will need the legal assistance of a New York Estate Litigation Attorney and/or New York Estate Administration Attorney. Call us at Stephen Bilkis and Associates for free consultation.