The following electronically filed documents read on this motion by defendant for an order dismissing plaintiff’s complaint pursuant to CPLR 3211; and cross motion by plaintiff pursuant to CPLR §3211(c), deeming the defendant’s motion to be one for summary judgment, and granting the plaintiff summary judgment on the grounds that there are no issues of fact and the plaintiff is entitled to summary judgment as a matter of law, and granting judgment for the plaintiff as prayed for in the Verified complaint, and setting the matter down for a hearing on plaintiff’s claim for use and occupancy: Papers Numbered Notice of Motion-Affirmation-Exhibits EF 4-9 Notice of Cross-Motion-Affidavit-Memorandum of Law EF 10-14 MEMORANDUM Plaintiff is the owner of the proprietary lease and cooperative shares appurtenant to Unit A-6 (hereinafter the “Unit”) in the building known as 111-39 76th Road, Forest Hills, New York. Defendant lives in the Unit, and has made direct payments of rent to both plaintiff and plaintiff’s predecessor in interest, all of which has been accepted since, 1991. The tenacy rights are still in dispute. Both sides at a minimum, agree that defendant is a month to month tenant of the subject apartment. 111-39 76th Road Associates was the sponsor of the noneviction cooperative conversion plan that was effective on January 20, 1984. Plaintiff purchased the unsold shares from the aforementioned sponsor on October 17, 2017. The prior rent controlled tenant of the Unit, Ms. Irma Lipscher, who is the grandmother of the plaintiff, did not purchase the Unit when the building was converted to cooperative ownership. She lived in the Unit until her death in 1990. In 2017, when plaintiff purchased the Unit, the defendant was occupying the unit. In 2018, plaintiff commenced a summary licensee holdover proceeding, 111-39 76th LLC vs. David Greenberg, Index No. L&T 61761-2018 in the Civil Court of Queens County. Defendant asserted in the Holdover Proceeding that he was entitled to succeed to Ms. Lipscher’s rent controlled tenancy. The issue was fully and actually litigated, and, by Decision and Order dated October 5, 2020, the Civil Court of Queens County (CLIFTON A. NEMBHARD, J.H.C.) determined that Defendant DAVID GREENBERG was not entitled to succession rights in the Unit as a rent controlled tenant thereof. On October 15, 2020, plaintiff caused to have defendant Greenberg personally served with a Combined Notice of Termination of Month-to-Month Tenancy and Notice of Non-Renewal of Residential Tenancy. As such, pursuant to RPL section 226-c, defendant Greenberg’s occupancy continued through January 31, 2021, ninety (90) days from the date of service of the Notice. The Notice accordingly advised defendant that his tenancy would end as of January 31, 2021. Despite the expiration of the Notice, defendant Greenberg failed to vacate and surrender possession of the Unit. Defendant is moving for a dismissal, while plaintiff crossmoves for summary judgment. CPLR 3211 provides “that upon the hearing of a motion…, either party may submit any evidence that could properly be considered on a motion for summary judgment. Whether or not issue has been joined, the court, after adequate notice to the parties, may treat the motion as a motion for summary judgment.” Here, plaintiff has provided adequate notice of its cross-motion to convert defendant’s motion to dismiss into a summary judgment. Thus, the Court will hear this motion as a motion for summary judgment instead. The proponent of a summary judgment motion must tender evidentiary proof in admissible form, eliminating any material issues of fact from the case. If the proponent succeeds, the burden shifts to the party opposing the motion, who then must show the existence of material issues of fact by producing evidentiary proof in admissible form, in support of his or her position (see Zuckerman v. City of New York, 49 NY2d 557 [1980]). In support of the motion defendant contends that this action should not be brought in the Supreme Court, but instead be brought in a special proceeding in Housing Court. Plaintiff opposes this argument and contends that RPAPL 711 does not bar this action in this Court. “Although resort to a summary proceeding to regain possession of real property has become the rule rather than the exception, 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” (Alleyne v. Townsley, 110 AD2d 674, 675 [2d Dept 1985]). Here, while this ejectment action may be brought in the Civil Court, the Supreme Court is also a proper forum for this action. Next, defendant contends that he is protected from eviction pursuant to the Martin Act, while plaintiff contends that he is not protected by it. “The Martin Act restricts rents and evictions during a conversion for as long as there are non purchasing tenants in possession” (Geiser v. Maran, 189 Misc 2d 442 [App Term 2001]).”A person who sublets a dwelling unit from a purchaser under the plan shall not be deemed a non-purchasing tenant” General Business Law §352-eeee. “[T]he Act excepts from protection only those who sublet from a “purchaser under the plan” (Geiser v. Maran, 189 Misc 2d 442 [App Term 2001]). The Martin Act “reasonably can be read to include only persons who lease a covered unit between the effective date of the offering plan and the closing date of the ownership conversion” (Park W. Vil. Assoc. v. Nishoika, 187 Misc 2d 243, 245 [App Term 2000]) Here, the Unit was sold in 2017 to plaintiff/purchaser. Defendant has made accepted rent payments to plaintiff/purchaser since 2017. Since defendant has sublet the Unit at issue from the purchaser, he is not protected under the Martin Act. In order to succeed on a cause of action for ejectment, plaintiff must show that “1) it is the owner of an estate in tangible real property, (2) with a present or immediate right to possession thereof, and (3) the defendant is in present possession of the estate” (Noamex, Inc. v. Domsey Worldwide, Ltd., 192 AD3d 817 [2d Dept 2021]). Here, there is no dispute that plaintiff is the owner of the Unit. Defendant is also in current possession of the Unit. Lastly, plaintiff has provided defendant notice of the termination of the lease. Accordingly, plaintiff has proven all the elements required for ejectment. Accordingly, and based on the above reasons, it is hereby ORDERED, that defendant’s summary judgment motion is denied; and it is further; ORDERED, that plaintiff’s cross-motion is granted; and plaintiff is granted summary judgment against defendant. Plaintiff is directed to settle Order, and to provide an affidavit stating the amount due to plaintiff by defendant for his continued use and occupancy. Dated: June 3, 2021
