District Court of Nassau County, First District, November 22, 2017

Paul S. Levy, Hempstead, for petitioner.

William D. Friedman, Hempstead, for respondents.

Petitioner, Royce Potts, has commenced a holdover proceeding against respondents Maria Thomas, Jason Thomas and Mark Thomas, pursuant to RPAPL 713 (7) for address 530 Alicia Drive, Westbury, New York. The petition, dated October 21, 2016, alleges that the three respondents are licensees, whose license has expired and reside at the premises without permission. It is alleged that a 10 day notice was served upon respondents to terminate their license.

Reference, throughout this decision, is made to Anthony Massop, also known as Anthony J. Massop, also known as Antony J. Massop, also known as Antony Massop, being the same person, under District Court of Nassau County, index No. LT-004208-10, and hereinafter referred to as Antony Massop.

On October 28, 2015, the seller, Antony Massop, entered into a residential contract of sale with the buyer, Royce H. Potts. The said contract provides:

"3. Purchase Price. The purchase price is One Hundred Thousand dollars ($100,000.00), payable as follows:

"(a) on the signing of this contract, by Purchaser's good cash payable to the Seller (as hereinafter defined), subject to collection, the receipt of which is hereby acknowledged, to be paid in advance to the seller (the 'Downpayment'): $5,000.00. The remaining balance to be released upon successful removal of tenants and any unsatisfied liens on the property."

The receipt, No. 240000, dated October 23, 2015, ostensibly indicates that Royce Potts paid $5,000 for the said premises to Antony Massop.

On October 24, 2015, a quitclaim deed was executed by Antony Massop (grantor) in favor of Royce H. Potts, IV, as grantee. The cover page for the quitclaim deed states that no{**58 Misc 3d at 313} [*2]consideration was paid for the transfer. The parties' attorneys stipulated during trial that the TP 585 indicates that no consideration was paid, and thus no transfer tax was paid.

Antony Massop testified that he told Royce Potts that Maria Thomas lived in the premises. In fact, the contract of sale stated that the balance of funds ($95,000) would be paid upon the tenant being removed from the premises.

By way of background, respondent Maria Thomas entered into a residential lease, dated February 6, 2007, with the option to purchase the premises located at 530 Alicia Drive, Westbury, New York. The agreement provided that respondent Maria Thomas could occupy the property as a tenant. She had until February 28, 2008 to exercise the option to purchase. Respondent paid the sum of $4,500 "as a non-refundable option consideration, which will be applied toward the purchase price of the property if, and only if, lessee exercises this option to purchase."

Eventually, the property was put into the name of Antony Massop by the deed dated July 13, 2007, from Buster Turner. Maria Thomas testified that she provided the funds for the purchase of the premises by Antony Massop. Maria Thomas claims that she had Antony Massop put the property into his name because she didn't have the credit to qualify for a mortgage. Maria Thomas contends that Antony Massop was a straw man who was to transfer the property to her at some point.

Antony Massop stated that he supplied all the funds for the purchase of the property. He testified that he purchased the property with the intent at some point of transferring the property to Maria Thomas.

Maria Thomas testified that she paid five months of mortgage payments after Antony Massop took title, but stopped because she had financial difficulty.

Antony Massop testified that he had a written agreement with Maria Thomas for her to make the mortgage payments as rent. This agreement was not produced at trial.

In July of 2010, Antony Massop commenced a nonpayment proceeding, under index No. LT-004208-10, against Maria Thomas, Jason Thomas and Mark Thomas. That petition alleged that the respondents were tenants who owed as rent the sum of $124,000 from December 1, 2007 through June 1, 2010, at a rate of $4,000 per month.{**58 Misc 3d at 314}

Ultimately, Antony Massop obtained a judgment dated May 11, 2011, granting possession and a warrant of eviction. However, petitioner didn't evict respondents. Rather, respondent Maria Thomas submitted an order to show cause dated July 28, 2011, which sought to vacate the judgment and warrant. To resolve the order to show cause, the parties entered into the following stipulation of settlement, dated June 22, 2012:

"The parties agree that the Respondents O/S/C is resolved as follows: The parties will enter into a contract of sale to sell the house to a purchaser of the Respondents choosing. Petitioner will negotiate a short sale at the lowest price acceptable to the short sale bank. The terms of the contract are incorporated herein by reference. Warrant to issue immediately, execution stayed until Sept. 7, 2012 to allow Respondent's buyer to close. Judgment of possession granted to Petitioner."

Next, Antony Massop submitted an affidavit of noncompliance from his counsel, sworn to November 13, 2012, stating that the warrant and judgment should be signed because:

"I have read the June 22, 2012 stipulation of settlement. The respondents have [*3]completely failed to comply with the stipulation. They did not pay any rent for the entire year of 2011 and failed to pay rent for January, February, March, April, May and June 2012."

Based upon the above affidavit of noncompliance, this court signed the warrant of eviction, dated November 27, 2012. Antony Massop never had the warrant executed upon to evict respondents. Instead, Antony Massop transferred the premises to petitioner Royce Potts in 2015 as described herein.

Respondent Maria Thomas took the initial position that she was entitled to relief under the theory of constructive trust. However, the defense of constructive trust was withdrawn. Instead, respondent contends that she is a contract vendee under the stipulation of settlement, dated June 22, 2012, and cannot be evicted. Respondent states the following in her memo of law:

"The terms of this stipulation make Thomas a vendee in possession having the right to specific performance of the stipulation. This statu[s]{**58 Misc 3d at 315} removes jurisdiction of the court to proceed with this summary proceeding. Barbarita v. Shilling, 111 AD2d 200 (2nd Dept 1985); Seth[i] v. Kaur, 2007 NY Slip Op 50713 (U) (Nas Co Dist Ct)."

Respondent also asserts that she is not a licensee as contended by petitioner in the notice of petition and petition, and therefore cannot be evicted.

The issuance of a warrant of eviction terminates the landlord/tenant relationship. (See RPAPL 749 [3].) In Super Nova 330 LLC v Gazes (693 F3d 138, 142 [2d Cir 2012]), the court stated:

"Section 749(3) of the New York Real Property Actions & Proceedings Law provides in relevant part:

"The issuing of a warrant for the removal of a tenant cancels the agreement under which the person removed held the premises, and annuls the relation of landlord and tenant, but nothing contained herein shall deprive the court of the power to vacate such warrant for good cause shown prior to the execution thereof.

"N.Y. Real Prop. Acts. Law § 749(3) (McKinney 2011). Under New York law, therefore, while the issuance of a warrant of eviction cancels any existing lease and seemingly terminates the landlord-tenant relationship, the tenant, in fact, retains a residual interest in the lease until the execution of the warrant. Prior to such execution, the state court may vacate the warrant of eviction for good cause and thereby reinstate the lease. See, e.g., In re Sweet N Sour 7th Ave. Corp., 431 B.R. 63, 70 (Bankr.S.D.N.Y.2010) (lifting automatic stay to permit debtor to move in New York state court to vacate warrant of eviction)."

Based upon the above, this court retains jurisdiction to vacate a warrant prior to execution of the warrant for good cause shown. Given same, the warrant issued on November 27, 2012, is hereby vacated. The affidavit of noncompliance (quoted above) states that nonpayment of rent constitutes the basis for the default. However, this stated reason bears no relationship to the terms and conditions of the stipulation of settlement dated June 22, 2012. The vacating of the warrant reinstates the landlord/tenant relationship, if any.

This court rejects respondent's claim that the stipulation, dated June 22, 2012, makes respondent Maria Thomas a{**58 Misc 3d at 316} contract vendee. The stipulation merely provides that the parties would agree to enter into a contract for sale. The trial testimony of both Royce Potts and Maria [*4]Thomas establishes that no contract of sale was entered into. A contract of sale is necessary for a tenant to become a contract vendee. (See Engel v Tinker Natl. Bank, 269 F Supp 199 [ED NY 1967].)

The court also rejects petitioner's characterization of Maria Thomas as a licensee. The distinction between tenant and licensee is set forth in 1 Robert F. Dolan, Rasch's Landlord and Tenant—Summary Proceedings § 4:11 (5th ed), wherein the following is stated:

"A 'license' is a personal, revocable and nonassignable privilege, conferring either by writing or parol, to do one or more acts upon land without possessing any interest in the land. In other words, a license aids the authority to do a particular act or series of acts upon another's land, which amount to a trespass without such permission. However, a lease is the transfer of an estate or interest in a designated portion of real estate, whereby the landlord yields up to the tenant exclusive possession of such designated portion of real estate for a specified term.

"The test of the distinction between a lease and a license depends, substantially, upon the question whether or not the contract or authority granting the right to enter upon the land of another confers upon the person so entering an interest in the land, so as to affect the other in the use of his land.

" 'A license,' said the Court of Appeals in a leading case on the subject, 'is a personal, revocable and non-assignable privilege, conferred either by writing or parol, to do one or more acts upon land without possessing any interest therein.' In other words, a license is the 'authority to do a particular act or series of acts upon another's land, which would amount to a trespass without such permission.' However, as has been seen, a lease is the transfer of an estate or interest in a designated portion of real estate, whereby the landlord yields up to the tenant exclusive possession of such designated portion of real estate for a specified term.{**58 Misc 3d at 317}

"The test of the distinction between a lease and a license depends, substantially, upon the question whether or not the contract or authority granting the right to enter upon the land of another confers upon the person so entering an interest in the land, so as to affect the other in the use of his land.

"The central distinguishing characteristic of a lease is the surrender of absolute possession and control of property to another for an agreed-upon rental."

In Federation of Orgs., Inc. v Bauer (6 Misc 3d 10, 12 [App Term, 2d Dept, 9th & 10th Jud Dists 2004]), the court stated the following concerning the characteristic of a licensee:

"Here, the fact that the admission agreement permitted appellant to reside in petitioner's premises, but did not grant him exclusive dominion and control over a specifically identified portion of petitioner's premises, is dispositive inasmuch as exclusive possession and control of specified real property is essential to the existence of a landlord-tenant relationship (see id. at 173). Moreover, the admission agreement indicated that the appellant's residence in petitioner's premises was part of a package of services provided to appellant, among others, and such services were not merely incidental to appellant's residence at the premises. In light of the foregoing, it is apparent to us that appellant was a licensee rather than a tenant (see e.g. 1 Dolan, Rasch's Landlord and Tenant—Summary Proceedings §§ 4:1-4:2, at 170-173 [4th ed]). As a result, petitioner's use of a 10-day [*5]notice was sufficient (see RPAPL 713 [7])."

Drost v Hookey (25 Misc 3d 210, 212 [Suffolk Dist Ct 2009]) also discusses the distinction between a tenant and licensee:

"The threshold dispositive issue requires the court to address the girlfriend's argument that her legal status is that of a 'tenant at will' (not a licensee) and as such is entitled to the enhanced 30-day notice protections afforded landlord/tenant relationships ascribed under RPAPL 711. (Real Property Law § 228.) Interestingly, the terms 'tenant at will' and 'licensee' are not defined by statute in New York, and as such the distinction between them is left to the common law. (See Larned v Hudson, 60 NY 102 [1875].) The generic common-law definitions of these two concepts do tend to blur and{**58 Misc 3d at 318} involve common concepts of temporary permission to occupy premises for an undetermined time period. (See generally Fisher v Queens Park Realty Corp., 41 AD2d 547 [2d Dept 1973].) However, synthesized down to its most basic common denominator, a 'tenant at will' recognizes a landlord-tenant relationship and the occupant is granted exclusive possession of a designated space while a 'licensee' acknowledges an absence of a landlord-tenant relationship and the occupant receives only unexclusive 'use or occupancy' of a premises. (See American Jewish Theatre v Roundabout Theatre Co., 203 AD2d 155, 156 [1st Dept 1994], citing Feder v Caliguira, 8 NY2d 400, 404 [1960]; see also Reynolds v Van Beuren, 155 NY 120 [1898] [dicta]; 49 NY Jur 2d, Easements § 216.)"

The evidence at bar clearly establishes that Maria Thomas has occupied the premises as a tenant from 2007 until the present. She has had exclusive possession and control of the property and been paying rent even though very little in light of the long span of time. The documents introduced into evidence unquestionably confirm that Maria Thomas is a tenant.

Every petition in a summary proceeding must state the respondent's interest in the premises and respondent's relationship to the petitioner with regard thereto. The foregoing is a jurisdictional requirement. (See RPAPL 741 [2]; Underhill v Cohen, 61 Misc 627 [App Term 1909].)

Claiming that respondent Maria Thomas is a licensee is a jurisdictional defect. Since Maria Thomas is a tenant, she is entitled to a 30 day notice. (See RPAPL 711; Real Property Law § 228.) However, in the instant case, respondent Maria Thomas was only served with a 10 day notice, as a licensee.

Based upon all of the foregoing, because respondent Maria Thomas is a tenant, and not a licensee, she was entitled to the required statutory notice of 30 days, and not a 10 day notice. Accordingly, the case is dismissed, in its entirety.