Civil Court of the City of New York, Queens County, December 3, 2023

Schnitzer & Tibas, PLLC (Michael Schnitzer of counsel) for petitioner.

Queens Legal Services (Matthew Reichert of counsel) for Sonia S. Finn, respondent.

The decision and order on the motions is as follows:

Procedural History

This is a holdover proceeding. The subject premises, located in a two-family house, are [*2]described as 185-15 Galway Avenue, First Floor Apartment, St. Albans, New York 11412. The petitioner states it is the owner/landlord of the subject premises. The proceeding is premised upon a 10-day notice to quit dated August 28, 2020. The affidavit of service provides service of the predicate notice was by means of "affix and mail."

Due to the public health crisis created by the COVID-19 pandemic, the case was postponed until further notice. (NY St Cts Elec Filing [NYSCEF] Doc No. 4.) On or about April 22, 2021, respondent Sonia S. Finn answered the petition. She claimed improper service and a general denial. (NYSCEF Doc No. 7.) On or about July 20, 2021, respondent Finn filed a hardship declaration. (NYSCEF Doc No. 8.)

Petitioner's and Respondent's Motions

Petitioner's first motion (mot seq No.1) sought to restore the case to the calendar as it was then required under Civil Court of the City of New York, Directive and Procedure 223 (DRP-223) and Administrative Order of the Chief Administrative Judge of the Courts AO/158/22. Petitioner wanted to have a trial or, in the alternative, an inquest if the respondents did not appear. Petitioner seeks a final judgment of possession and a warrant of eviction.

Respondent Finn then appeared by Queens Legal Services. Respondent opposed the motion to restore the proceeding based upon improper service. Respondent argued the request was premature and its motion referenced another person, a named party in another proceeding, regarding the "second-floor apartment" at the two-family house. The other summary proceeding is identified as LT-300696-20/QU. The affidavit of service indicates that said motion was mailed to the second floor apartment. (NYSCEF Doc No. 9.){**82 Misc 3d at 339}

The matter was adjourned. Respondent Finn then filed a notice of motion (mot seq No. 2) (NYSCEF Doc No. 19). Respondent argues for dismissal of this proceeding based upon CPLR 3212 because petitioner has failed to state a cause of action and has improperly filed the proceeding under RPAPL 713 (7). Petitioner seeks termination based upon the revocation of a license. Respondent has never been a licensee of the petitioner. Respondent was the prior owner. The deed was foreclosed pursuant to an action in Queens County Supreme Court and thereafter the property sold to the petitioner.

Petitioner filed a notice of motion (mot seq No. 3) seeking the same relief as its prior motion (mot seq No. 1). Petitioner seeks a conference pursuant to DRP-223 and AO/158/22. It seeks to schedule the case for trial and upon failure to appear to hold an inquest and obtain a final judgment of possession and warrant of eviction. Petitioner also seeks payment of use and occupancy. (NYSCEF Doc No. 29.) Petitioner's motion sequence No. 1 is moot and denied.

In opposition to the dismissal motion, petitioner argues that there exists a question of fact and a trial is proper. Petitioner argues that respondent has an inferred license to occupy the space. "[B]y not seeking Respondents' removal or rent/use and occupancy from them, NYCBM impliedly allowed Respondents to remain on the subject premises." (NYSCEF Doc No. 38, counsel's affirmation in opp ¶ 11.) [*3]

Discussion and Conclusion

Upon consideration of the arguments and documents filed to NYSCEF, respondent's motion to dismiss this proceeding is granted. There is no dispute that the notice to quit speaks of a revocation of license to the licensee. The notice to quit, however, does not describe how or when the license was created. It does not describe when the license was given to the respondent. (NYSCEF Doc No. 1.) Absent a license agreement, which is not found in the predicate notice, there is no license to be revoked, and no basis to invoke RPAPL 713 (7).

The predicate notice states that the property was sold to petitioner on August 11, 2020. It further states the respondents failed to vacate and surrender possession to petitioner when title passed. "The licensee [sic] for which you remain in possession is hereby revoked." The notice to quit then states that "the license agreement has now been revoked and you are no longer entitled to remain in occupancy of the subject premises." The predicate notice states it is issued pursuant to RPAPL 713 (7) and dated August 28, 2020.{**82 Misc 3d at 340}

"A special proceeding may be maintained under this article after a ten-day notice to quit has been served upon the respondent in the manner prescribed in section 735, upon the following grounds: . . .

"7. He is a licensee of the person entitled to possession of the property at the time of the license, and (a) his license has expired, or (b) his license has been revoked by the licensor, or (c) the licensor is no longer entitled to possession of the property; provided, however, that a mortgagee or vendee in possession shall not be deemed to be a licensee within the meaning of this subdivision." (RPAPL 713.)

The petition states that respondent failed to vacate after the expiration of the 10-day notice to quit dated August 28, 2020, which revoked the license. The petition fails to state facts upon which the proceeding is based because it too, like the predicate notice, fails to describe the purported license and how the occupant entered into possession of the subject premises. "[T]he failure to allege in the petition that occupant entered into possession as the owner or to describe the purported license were fundamental omissions . . . (see RPAPL 741)" (130-50 228th, LLC v Moseley, 77 Misc 3d 139[A], 2022 NY Slip Op 51372[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022] [Term reversed the final judgment of possession and noted that the failure to describe the purported license was a fundamental omission]).

Summary proceedings are to be strictly construed. If the predicate notice states that a license to occupy is revoked, then there must have been prior permission to use the space. The permission or a license would need to be stated, written or confirmed by an overt act, which created such a license. Petitioner chose to describe respondent as a licensee despite its pleading and the predicate notice that respondent failed to vacate and surrender possession to petitioner when title passed. (See Barbara Schwimmer 40th St. LLC v Santos, 77 Misc 3d 1231[A], 2022 NY Slip Op 51335[U] [Civ Ct, Kings County 2022]; SJ Qualified Opportunity Zone Fund LLC v Jarret, 2022 NY Slip Op 34675[U], *2 [Civ Ct, Queens County 2022] [by petitioner "(s)tating that they are licensees, they are therefore required to prove they are indeed licensees and that their license expired which they are admittedly unable to do"].) [*4]

{**82 Misc 3d at 341}The passing of title would not necessarily create a license. The predicate notice and petition fail to describe how and when a license was created upon the conveyance of deed to the petitioner. Pursuant to CPLR 409 (b): "The court shall make a summary determination upon the pleadings, papers and admissions to the extent that no triable issues of fact are raised." The notice to quit does not raise a triable issue of revocation of a license because a license is not alleged or described to have been given to the respondent. Furthermore, the notice to quit cannot be amended and as such it must stand as is requiring the dismissal of this proceeding under section 409 (b). (Chinatown Apts. v Chu Cho Lam, 51 NY2d 786 [1980].)

The court cannot speculate whether there was an intention to create a license. Intentions are unavailing in regard to the adequacy of a predicate notice. A predicate notice must be clear and unambiguous. If there was an intention to create a license agreement, it did not happen, and it cannot be deemed to have occurred.

It is not disputed that respondent was the prior owner of the property. It is not disputed that the predicate notice provides that a license has been revoked. There is no claim that a license, written or oral, was reached between the parties. As such this holdover proceeding premised upon RPAPL 713 (7) must be dismissed.

Conclusion

Accordingly, based upon the foregoing the court finds that respondent was not a licensee of the petitioner, that a license was not created upon the passing of title to the petitioner and the petition fails to state a cause of action, and it is ordered that respondent's motion to dismiss (mot seq No. 2) is granted. Petitioner's motions to schedule a trial (mot seq Nos. 1, 3) are moot, and therefore denied.