Supreme Court, Appellate Term, First Department, April 29, 2015

Fein, Such & Crane, LLP, Syracuse (John A. Cirando of counsel), for appellant.

Adam Leitman Bailey, P.C., New York City (Jeffrey R. Metz of counsel), for Kisshia Simmons, respondent.

Final judgment, entered on or about June 7, 2013, affirmed, with $25 costs.

This holdover proceeding seeks to recover possession of a cooperative apartment occupied by respondent Kisshia Simmons. Respondent initially entered possession of the premises as a tenant pursuant to a 2005 proprietary lease agreement. Respondent subsequently defaulted on a loan secured by the shares and proprietary lease allocated to her apartment, and the shares and lease were then sold at a UCC article 9 nonjudicial sale. Petitioner is the purported assignee of the successful bidder at the sale. Petitioner then commenced this holdover proceeding, upon a 10-day notice to quit, alleging that respondent's license to occupy the premises has expired.

We sustain the dismissal after trial of the holdover petition. A licensee holdover proceeding pursuant to RPAPL 713 (7) does{**48 Misc 3d at 26} not lie in the circumstances here present, since respondent "entered into possession of the apartment premises as a tenant pursuant to a proprietary lease agreement" (Retained Realty Inc. v Zwicker, 46 Misc 3d 133[A], 2014 NY Slip Op 51852[U], *1 [App Term, 1st Dept 2014]; City Enters. v Posemsky, 184 Misc 2d 287 [2000]). "If that lease has been terminated . . . [respondent] is in possession as a holdover tenant. [S]he is not in occupancy pursuant to a license" (Federal Home Loan Mtge. Assn. v Perez, 40 Misc 3d 1, 3 [2013]). Indeed, so far as shown on this record, the nonparty cooperative neither terminated respondent's lease nor issued a new lease naming petitioner as the "tenant-shareholder." To the extent that the cooperative refuses to do so, petitioner's remedy is in another forum at another time (see generally LI Equity Network, LLC v Village in the Woods Owners Corp., 79 AD3d 26 [2010]).

Petitioner also misplaces reliance upon RPAPL 713 (1), which permits a purchaser to commence a summary proceeding to remove an occupant where the "property has been sold by virtue of an execution against him . . . and a title under the sale has been perfected" (RPAPL 713 [1]). The notice to quit did not give adequate notice of such claim, even when we apply the liberal standard of "reasonableness" (see Metropolitan Transp. Auth. v Kura Riv. Mgt., 292 AD2d 230 [2002]; Spinale v 10 W. 66th St. Corp., 210 AD2d 85 [1994]). In any event, RPAPL 713 (1) finds no application here because the property sold, viz., the shares and proprietary lease, were "personal property" (see Matter of State Tax Commn. v Shor, 43 NY2d 151 [1977]; Silverman v Alcoa Plaza Assoc., 37 AD2d 166, 172 [1971]), not "real property" (RPAPL 701 [1]). "The sale of the shares and the lease is not a sale of the 'real property' . . . [t]hus, RPAPL 713 (1) . . . provides no basis for the maintenance of this proceeding" (Federal Home Loan Mtge. Assn. v Perez, 40 Misc 3d at 3-4).

Petitioner similarly misplaces reliance upon UCC article 9 as a basis to maintain this proceeding. "As the right to maintain summary proceedings did not exist at common law and is solely a creation of the statute, it applies only in those cases authorized by the statute" (Dulberg v Ebenhart, 68 AD2d 323, 328 [1979]). In the absence of any specific authority under RPAPL 713 (proceeding where no landlord-tenant relationship exists), the proceeding may not be maintained.

Lowe, P.J., Shulman and Hunter, Jr., JJ., concur.