Alleyne v. Townsley

Appellate Division of the Supreme Court of New York

Alleyne v. Townsley

110 A.D.2d 674, 487 N.Y.S.2d 600, 1985 N.Y. App. Div. LEXIS 48571

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 8, 1985

StatusPublished

Cited by14 cases

This text of 110 A.D.2d 674 (Alleyne v. Townsley) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Alleyne v. Townsley, 110 A.D.2d 674, 487 N.Y.S.2d 600, 1985 N.Y. App. Div. LEXIS 48571 (N.Y. Ct. App. 1985).

Pincite

Opinion

The plaintiff landlords, Leroy and Isaline Alleyne, are the owners of a two-family dwelling located at 1538 President Street, Borough of Brooklyn, City of New York. The defendant, Fannie Townsley, rented the second-floor apartment on a [675]*675monthly basis in July 1983. In or about September 1983 the Alleynes served Townsley with a 30-day notice terminating her tenancy as of October 31, 1983. Ms. Townsley failed to vacate the premises, and a holdover proceeding was instituted in Civil Court. Townsley raised as a defense that the premises were occupied by three families in violation of the certificate of occupancy. As a result, the Civil Court proceeding was thereafter withdrawn and the instant action for ejectment instituted. The Alleynes successfully moved for summary judgment and Townsley has appealed. We affirm.

Although resort to a summary proceeding to regain possession of real property has become the rule rather than the exception (RPAPL art 7; 2 Warren’s Weed, NY Real Property, Ejectment, § 1.01), the common-law action for ejectment still survives in New York and is more properly referred to as an action to recover possession of real property (RPAPL art 6). The common-law principles governing the ejectment action are unchanged, unless explicitly modified by statute. No statute abrogates the common-law rule that notice is unnecessary to maintain an ejectment action against a tenant who wrongfully holds over after expiration of a fixed and definite term (see, 13 CarmodyWait 2d, NY Prac § 89:118). While the 30-day notice served on the defendant in September 1983 was intended by the landlords to comply with the requirements of Real Property Law § 232-a, being a condition precedent to maintaining summary eviction proceedings under RPAPL article 7, we agree with Special Term that this notice served equally well to convert the defendant’s tenancy into one for a fixed and definite term. Indeed, the tenant concedes in her brief on appeal that “the notice terminated [her] tenancy as of October 31, 1983”. We need not pass upon the soundness of the rule announced in Haberman v Wager (73 Misc 2d 732) and its progeny, which holds that a 30-day notice is required by Real Property Law § 232-a for each summary proceeding, because, in any event, those cases are inapposite since the instant action seeks the common-law remedy of ejectment and is not a statutory summary eviction proceeding. Gibbons, J. P., Weinstein, Brown and Niehoff, JJ., concur.

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The plaintiff landlords, Leroy and Isaline Alleyne, are the owners of a two-family dwelling located at 1538 President Street, Borough of Brooklyn, City of New York. The defendant, Fannie Townsley, rented the second-floor apartment on a [675]*675monthly basis in July 1983. In or about September 1983 the Alleynes served Townsley with a 30-day notice terminating her tenancy as of October 31, 1983. Ms. Townsley failed to vacate the premises, and a holdover proceeding was instituted in Civil Court. Townsley raised as a defense that the premises were occupied by three families in violation of the certificate of occupancy. As a result, the Civil Court proceeding was thereafter withdrawn and the instant action for ejectment instituted. The Alleynes successfully moved for summary judgment and Townsley has appealed. We affirm.

Although resort to a summary proceeding to regain possession of real property has become the rule rather than the exception (RPAPL art 7; 2 Warren’s Weed, NY Real Property, Ejectment, § 1.01), the common-law action for ejectment still survives in New York and is more properly referred to as an action to recover possession of real property (RPAPL art 6). The common-law principles governing the ejectment action are unchanged, unless explicitly modified by statute. No statute abrogates the common-law rule that notice is unnecessary to maintain an ejectment action against a tenant who wrongfully holds over after expiration of a fixed and definite term (see, 13 CarmodyWait 2d, NY Prac § 89:118). While the 30-day notice served on the defendant in September 1983 was intended by the landlords to comply with the requirements of Real Property Law § 232-a, being a condition precedent to maintaining summary eviction proceedings under RPAPL article 7, we agree with Special Term that this notice served equally well to convert the defendant’s tenancy into one for a fixed and definite term. Indeed, the tenant concedes in her brief on appeal that “the notice terminated [her] tenancy as of October 31, 1983”. We need not pass upon the soundness of the rule announced in Haberman v Wager (73 Misc 2d 732) and its progeny, which holds that a 30-day notice is required by Real Property Law § 232-a for each summary proceeding, because, in any event, those cases are inapposite since the instant action seeks the common-law remedy of ejectment and is not a statutory summary eviction proceeding. Gibbons, J. P., Weinstein, Brown and Niehoff, JJ., concur.

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Bluebook (online)

110 A.D.2d 674, 487 N.Y.S.2d 600, 1985 N.Y. App. Div. LEXIS 48571, Counsel Stack Legal Research, https://law.counselstack.com/opinion/alleyne-v-townsley-nyappdiv-1985.

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