        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

487
CA 13-00512
PRESENT: SMITH, J.P., PERADOTTO, CARNI, SCONIERS, AND VALENTINO, JJ.


IN THE MATTER OF LAZY ACRES PARK, LLC,
PETITIONER-APPELLANT,

                    V                             MEMORANDUM AND ORDER

PAUL FERRETTI, ROBIN FERRETTI AND CLAUDETTE
SHELTON, RESPONDENTS-RESPONDENTS.


MENTER, RUDIN & TRIVELPIECE, P.C., SYRACUSE (JULIAN B. MODESTI OF
COUNSEL), FOR PETITIONER-APPELLANT.

GOETTEL, POPLASKI & DUNN, PLLC, WATERTOWN (MATTHEW A. GOETTEL OF
COUNSEL), FOR RESPONDENTS-RESPONDENTS.


     Appeal from an order of the Jefferson County Court (Kim H.
Martusewicz, J.), entered May 14, 2012. The order vacated a judgment
of eviction of the Town Court of the Town of Cape Vincent.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs and the judgment is
reinstated except to the extent that it provided that petitioner is
entitled to the payment of rent following the date of the issuance of
the warrant of eviction.

     Memorandum: Petitioner appeals from an order of County Court
that vacated a judgment of eviction rendered by Town Court and
remitted the matter to Town Court for a jury trial, as demanded by
respondents, tenants who lease a lot in petitioner’s seasonal
manufactured home park. Contrary to County Court’s conclusion, Town
Court properly granted petitioner’s motion for summary judgment on the
petition. Because there are no triable issues of fact, petitioner was
entitled to summary judgment and a warrant of eviction. We note,
however, that Town Court improperly determined that petitioner was
entitled to summary judgment on the ground that its documentary proof
conclusively established that no retaliatory eviction occurred.
Neither affirmative defense of retaliatory eviction contained in Real
Property Law §§ 223-b or 233 (n) applies to the property at issue.
Real Property Law § 223-b applies to “rental residential premises” (§
223-b [6]). Here, respondents leased only a lot from petitioner, and
we conclude that a mobile home, owned outright and placed on a lot
rented for seasonal use and occupancy, is not a “rental residential
premises” within the meaning of section 223-b. That statute was
directed at landlords, to ensure that they comply with housing codes
and the State’s warranty of habitability statute (see Executive Dept
                                 -2-                           487
                                                         CA 13-00512

Mem, Bill Jacket, L 1979, ch 693), both of which are inapplicable to
the rental of the lot at issue here. Furthermore, we agree with
petitioner that County Court erred in concluding that petitioner
commenced this proceeding pursuant to Real Property Law § 233 (d) and
that petitioner is a “manufactured home park” subject to the
requirements of Real Property Law § 233. The petition did not invoke
section 233 (d). Moreover, subdivision (a) (3) of that statute
defines the term “manufactured home park” as “a contiguous parcel of
privately owned land which is used for the accommodation of three or
more manufactured homes occupied for year-round living.” The record
establishes that petitioner’s tenants and respondents occupy their
manufactured homes only from May 1 to October 15, i.e., seasonally
rather than year-round.

      Finally, although not raised on this appeal, we note that Town
Court erred in directing that the judgment include payment of any
outstanding amount of rent due “as of the date of [r]espondents[’]
departure from the premises.” The issuance of a warrant of eviction
terminated any landlord-tenant relationship as a matter of law, and no
rent can be collected after the date of the issuance of the warrant as
a matter of law (see RPAPL 749 [3]), i.e., June 18, 2011. We further
note that the record reflects that respondents paid rent through March
2011.




Entered:   June 20, 2014                        Frances E. Cafarell
                                                Clerk of the Court
