Landlord appeals from an order of the Civil Court of the City of New York, New York County (Maria Milin, J.), dated June 28, 2006, which granted the motion of tenant Thomas Disch to dismiss the petition and denied, as moot, landlord's cross motion for leave to conduct discovery in a holdover summary proceeding.

Per Curiam.

Order (Maria Milin, J.), dated June 28, 2006, reversed, with $10 costs, motion to dismiss denied and petition reinstated.

Tenant's pre-answer motion to dismiss the holdover petition, based upon landlord's failure to name the estate of the deceased co-tenant (Naylor) as a necessary party and to serve the predicate notice of nonrenewal upon his estate, should have been denied. Naylor died on September 6, 2005, prior to the February 28, 2006 expiration date of the parties' last stabilized lease. Landlord had no obligation to join the estate since any possessory claim of the estate lapsed upon the termination of decedent's lease (see Matter of Rubinstein v 160 W. End Owners Corp., 74 NY2d 443, 446 [1989]; Joint Props. Owners v Deri, 113 AD2d 691, 693-694 [1986]; cf. Westway Plaza Assocs. v Doe, 179 AD2d 408 [1992]). In restating the petition, we do not pass upon landlord's application for leave to conduct discovery, a matter not reached below.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Decision Date: October 02, 2007