1981 Ocean Ave. Realty, LLC v. Station Mgmt. Serv. Inc., Index No. 87058/2015, 4/5/16 (Levine, J.)

Holdover Proceeding; Breach; Lease; Voluntary Termination; RPAPL § 741(3); Subtenant Rights; Necessary Party

By: Gleny M. Peña | Staff Member

Petitioner is the landlord of the premises known as 1891 Ocean Avenue in Brooklyn, New York. Respondents, Station Management, Ocean Auto Center, Caton Gas Corp., David Rishty and 1981 Gas Corp., are leasees of the premises (collectively, the “Respondents”). In 2007, Station Management, the prime tenant, entered into a sublease with Caton Gas Corp., which described the demised premises as a gasoline service station, but did not provide a description of the particular subdivision of the premises covered under the leases. Caton Gas Corp. then further sublet the premises to Ocean Auto Center and 1981 Gas Corp.

Later, Petitioner served a ten-day notice to cure alerting Respondents of a violation of their lease on the basis that Respondents failed to comply with provisions of the lease rider requiring them to obtain fire and public liability insurance policies covering the premises. Respondents failed to cure the violation. Thereby, pursuant to the parties’ leases, Petitioner served a notice of termination on Respondents. Petitioner then commenced a holdover proceeding to recover possession of the premises.

Respondents Ocean Auto Center and David Rishty, moved for dismissal on two grounds: (1) that the petition failed to properly and adequately describe the premises in violation of RPAPL § 741(3) and (2) for failure to name a necessary party, 1981 Gas Corp., respectively.

In support of its motion to dismiss, Respondent Ocean Auto Center argues RPAPL § 741(3) mandates that the petition, in describing the premises from which removal is sought, must provide the “exact location of the premises,” and failure to do so is subject to dismissal.

Ultimately, the court found that a vague or incomplete description of the premises was not sufficient grounds for dismissal where there is only one prime tenant who occupies the entire premises. First, the description of the premises applied to the prime tenant and required no distinction among the subtenants. Here, all of the tenants were being sued collectively and occupy the entire premises collectively. Therefore, the court found the description of the premises sufficient.

Second, the court further found that Station Management’s default limited the tenancy rights of subtenants, such as Ocean Auto Center. The subtenancy’s dependence on the terms of the primary lease coupled with the Petitioner’s lack of consent to continue the tenancy rendered the prime tenant’s breach an effective termination of the subleases.

Third, the court held that Petitioner need not name 1981 Gas Corp. as a necessary party because Petitioner acted properly and in strict conformity with the stay pending a related Supreme Court, Kings County case. Specifically, the stay precluded the Petitioner from terminating 1981 Gas Corp.’s lease or from commencing or maintaining any summary proceeding to recover possession.

Accordingly, the court denied the Respondents’ motion to dismiss.

1981 Ocean Ave. Realty, LLC v. Station Mgmt. Serv. Inc., Index No. 87058/2015, 4/5/16 (Levine, J.).


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