| 200 Claremont Ave. Hous. Dev. Fund Corp. v Estate of Lewis |
| 2024 NY Slip Op 24051 [83 Misc 3d 9] |
| Accepted for Miscellaneous Reports Publication |
| Supreme Court, Appellate Term, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| As corrected through Wednesday, June 26, 2024 |
| 200 Claremont Avenue Housing Development Fund Corporation, Appellant, v Estate of Elsie Lewis et al., Respondents. |
Supreme Court, Appellate Term, First Department, February 21, 2024
Carol A. Herlihy, New York City, for appellant.
Dorian Lewis, respondent pro se.
Order (Karen May Bacdayan, J.), dated July 12, 2022, affirmed, without costs.
Civil Court properly dismissed this nonpayment summary proceeding without prejudice to recommencement following the appointment of an executor or administrator of the estate of the deceased tenant. The Housing Stability and Tenant Protection Act of 2019 (HSTPA) (L 2019, ch 36) amended RPAPL 711 (2) to provide, inter alia, that where a tenant dies during the term of the lease, a nonpayment proceeding may be commenced naming the occupants of the apartment "seeking a possessory judgment only as against the estate." However, "[a]n estate is not a legal entity and any action for or against the estate must be by or against the executor or administrator in his or her representative capacity" (Grosso v Estate of Gershenson, 33 AD3d 587, 587 [2d Dept 2006] [internal quotation marks and citation omitted]; see Extell Belnord LLC v Uppman, 113 AD3d 1, 12 [1st Dept 2013]; Westway Plaza Assoc. v Doe, 179 AD2d 408 [1st Dept 1992]). Here, it is undisputed that no executor or public administrator has been appointed for the deceased tenant's estate. Therefore, [*2]the petition was properly dismissed.
While the prior version of RPAPL 711 (2) expressly permitted a landlord to proceed against the deceased tenant's estate when, inter alia, "no administrator or executor has been appointed {**83 Misc 3d at 11}. . . after three months from the date of death of the tenant," the statute, as amended, no longer contains that language. "The Legislature, by enacting an amendment of a statute changing the language thereof, is deemed to have intended a material change in the law" (McKinney's Cons Laws of NY, Book 1, Statutes § 193 [a]). The fact that the quoted language was not carried over to the new legislative enactment provides strong support for the conclusion that the legislature intended to end the practice of allowing a nonpayment proceeding against a deceased tenant's estate where no executor or administrator has been appointed (see e.g. Stettine v County of Suffolk, 66 NY2d 354, 357-358 [1985]; People v Skinner, 94 AD3d 1516, 1519 [4th Dept 2012]).
Hagler, P.J., Brigantti and Perez, JJ., concur.