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DECISION/ORDER   This non-payment summary proceeding came before the Court for trial on August 12, 2019, before the Honorable Marissa Soto, with appearances by Teofilo Diaz, Inc. (the “Petitioner”) through its attorney, Stark Law PLLC by Garett Metcalf, Esq. and Irving De Los Santos (the “Respondent”) appearing pro se. Procedural History The non-payment petition filed with the Court on June 3, 2019 identified Teofilo Diaz Inc. as the Owner/Landlord (the “Petition”). The Petition was signed by counsel. The Petition was accompanied by (i) the Rent Demand Notice, dated April 22, 2019, which identified the landlord as Petitioner (the “Demand”); (ii) the Fair Debt Collection Practices Act notice, which also identifies Petitioner as landlord; and (iii) the affidavit of substituted service. The Respondent filed his answer in person, dated June 18, 2019, alleging (i) a general denial, (ii) that Petitioner harassed Respondent and counterclaiming that Petitioner disrupted course of business and harassment (the “Answer”). The Answer was accompanied by an affidavit in support that included facts related to the alleged harassment and business interruption. The matter was originally on for June 26, 2019 and was adjourned to July 29, 2019 and marked final for trial on August 12, 2019. On August 6, 2019, the Petitioner filed an Order to Show Cause seeking the case be restored to the calendar for a date certain to dismiss the proceeding and/or granting such other and further relief as may be just (the “OSC”). The Respondent argues in the OSC that the Petitioner is not the proper petitioner. The OSC was not signed because in fact, the case had not been removed from the calendar but instead had been calendared for the August 12, 2019 trial date. The trial was held on that date. Petitioner was represented by counsel and produced as a witness an employee of the Petitioner. Respondent appeared pro se. Respondent at the trial raised the uncontroverted issue that the Petitioner was not the landlord pursuant to the lease under which the non-payment action was brought. The parties were then directed to summit post trial briefs on the issue. Findings of Fact The Petition was signed by counsel. The Demand identified the Petitioner as the landlord. Respondent and Petitioner each produced a lease between 1108 Stratford Holding Corp. and Respondent as the lease controlling the subject property (the “Lease”). Petitioner is not, in fact, the landlord in the lease signed by the Respondent. Petitioner is the fee simple owner of the subject property but not landlord under the Lease. Teofilio Diaz signed the Lease as president of 1108 Stratford Holding Corp. 1108 Stratford Holding Corp. is an active corporation registered with the New York State Department of State. The Petition names Teofilo Diaz Inc. as the landlord and owner of the premises, it makes no reference to Teofilo Diaz as an individual or to 1108 Stratford Holding Corp. Petitioner is the sole shareholder of 1108 Stratford Holding Corp. 1108 Stratford Holding Corp. did not assign its interest in the Lease to Petitioner. Arguments The Petitioner argues that it has established its prima facie case and that the Respondent has waived his right to raise the standing issue because it was not pled in his answer or in a pre-answer motion to dismiss. Petitioner relies on CPLR 3211(a)(3)(e) and several Second Department mortgage foreclosure cases dealing with the question of standing. US Bank v. Nelson, 169 A.D.3d 110 169 A.D.3d 110, 111 (2d Dep’t 2019) (a general denial in a mortgage foreclosure action to complaint’s ownership allegation is not sufficient to preserve the issue for adjudication); Nationstar Mtge., LLC v. Balducci, 165 A.D.3d 959 (2d Dep’t 2018); U.S. Bank N.A. v. Clement, 163 A.D.3d 742 (2d Dep’t 2018); JP Morgan Chase Bank, N.A. v. Atedgi, 162 A.D.3d 756 (2d Dep’t 2018); Citimortgage, Inc. v. McKenzie, 161 A.D.3d 1040 (2d Dep’t 2018); Bank of N.Y. Mellon v. Phyllis Teobalds, 161 A.D.3d 1137 (2d Dep’t 2018). Further, the Petitioner argues in its post-trial submission that the Petition alleges that Teofilo Diaz is the owner/managing agent of the premises. That is incorrect. Petitioner also argues that as the parent company of 1108 Stratford Holding Corp. it is entitled to bring the present action as a third-party beneficiary but cites no authority in a format the Court was able to use to identify the case. Respondent, who has been pro se throughout the proceeding, alleged in his post-trial submission as he did at trial, that the Petitioner was neither his landlord nor lessor and that it had assumed a “false capacity” with intent to defraud the Respondent. Petitioner Failed to Establish Prima Facie Case The present proceeding is a creature of statute, namely the Real Property Actions and Proceedings Law (“RPAPL”), which created summary proceedings to recover possession of real property. As such, the elements that must be shown and the procedures to be followed are first and foremost dictated by the RPAPL. The RPAPL states a summary proceeding may be brought by (1) the landlord or lessor, (2) the reversioner or remainderman next entitled to possession of the property upon the termination of the estate of a life tenant, where a tenant of such life tenant holds over, (3) the purchaser upon the execution or foreclosure sale, or the purchaser on a tax sale to whom a deed has been executed and delivered or any subsequent grantee, distributee or devisee claiming title through such purchaser, (4) the person forcibly put out or kept out, (5) the person with whom, as owner, the agreement was made, or the owner of the property occupied under an agreement to cultivate the property upon shares or for a share of the crops, (6) the person lawfully entitled to the possession of property intruded into or squatted upon, (7) the person titled to possession of the property occupied by a licensee who may be dispossessed, (8) the person, corporation or law enforcement agency authorized by this article to proceed to remove persons using or occupying premises for illegal purposes, (9) the receiver of a landlord, purchaser or other person so entitled to apply, when authorized by the court, (10) the lessee of the premises, entitled to possession, (11) not-for-profit corporation, and tenant associations authorized in writing by the commission of the department of the city of New York charged with enforcement of the housing maintenance code of such city to manage residential real property owned by such city. RPAPL §721. It is a part of the petitioner’s prima facie case to prove its entitlement to bring an action under the RPAPL by proving it falls within one of the enumerated categories of RPAPL §721. ESRT Empire State Bldg., LLC v. Helfand & Helfand, 64 Misc. 3d 1209 (A) (Civ. Ct. NY Cty May 10, 2019); Terner v. Brighton Foods, Inc., 27 Misc. 3d 1225(A) (Civ. Ct. Kings Cty May 14, 2010); Metropolitan Realty Group v. McSwain, 27 Misc. 3d 1216[A] (Civ. Ct. Kings Cty May 14, 2010). Petitioner failed to do so. As a petitioner’s compliance with RPAPL 721 is an element of its prima facie case, the Respondent’s failure to raise lack of standing is not fatal to its consideration as it is not an affirmative defense. CPLR 3018. As a result of the above, it is hereby ORDERED AND ADJUDGED that the Petitioner has not made out its prima facie case; and it is further ORDERED AND ADJUDGED that the non-payment proceeding is dismissed without prejudice. This constitutes the decision and order of the Court. Dated: October 3, 2019

 
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