State Realty, LLC v. Ger

• Court: Appellate Terms of the Supreme Court of New York
• Decided: April 7, 2017
• Docket: 2017 NYSlipOp 50439(U)
• Status: Published

Opinion

State Realty, LLC, Respondent,

against

Alevitina Ger, Tenant, and Boris Lankios, Appellant, et al., Undertenants.

The Litvak Law Firm, PLLC., Igor Litvak, Esq., for appellant.

Law Offices of Mark J. Fox, Mark J. Fox, Esq., for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Marcia J. Sikowitz, J.), dated December 9, 2015. The order denied a motion by Boris Lankios to vacate so much of a final judgment of the same court entered September 25, 2015 as awarded landlord, upon Lankios's default, the principal sum of $7,968 as against him in a nonpayment summary proceeding.

ORDERED that the order is reversed, without costs, the motion by Boris Lankios to vacate so much of the final judgment entered September 25, 2015 as awarded landlord, upon Lankios's default, the principal sum of $7,968 as against him is granted and so much of the petition as is against him is dismissed.

Landlord commenced this nonpayment proceeding against tenant, and against Boris Lankios as tenant's guarantor under the lease. Lankios interposed an answer but did not appear at the nonjury trial. Following the trial, landlord was awarded possession and arrears as against tenant and, upon Lankios's default, was awarded arrears as against him. Lankios's subsequent motion to vacate so much of the final judgment as was entered against him was denied.

In a summary proceeding, the court lacks subject matter jurisdiction to adjudicate a debt [*2]owed to the landlord by a guarantor of the rent. As no landlord-tenant relationship exists between these parties, the money owed by the guarantor on the guaranty is not "rent" within the meaning of RPAPL 741 (5) (see MTC Commons, LLC v Millbrook Training Ctr. & Spa, Ltd., 50 Misc 3d 135[A], 2016 NY Slip Op 50048[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2016]; Triangle Props. # 14, LLC v Beauty Salon Depot/Beauty U.S.A., 29 Misc 3d 132[A], 2010 NY Slip Op 51901[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2010]). Thus, the Civil Court did not have jurisdiction to adjudicate this claim for a debt allegedly owed to landlord by Lankios as guarantor of tenant's rent.

Accordingly, the order is reversed, the motion by Boris Lankios to vacate so much of the final judgment entered September 25, 2015 as awarded landlord, upon Lankios's default, the principal sum of $7,968 as against him is granted and so much of the petition as is against him is dismissed.

Weston, J.P., Pesce and Aliotta, JJ., concur.

ENTER:

Paul Kenny

Chief Clerk

Decision Date: April 07, 2017