Ingram v. Johnston ( 1991 )

In an action, inter alia, for ejectment, the plaintiff appeals from so much of an order of the Supreme Court, Queens County (Dunkin, J.), dated January 2, 1990, as denied his motion to direct the defendant to deposit with the court the fair market rental value of the subject premises, and the defendant cross-appeals from so much of the same order as granted the plaintiff an injunction prohibiting the defendant from interfering in certain landlord-tenant relationships between the plaintiff and the tenants of the premises, and denied the defendant’s cross motion to dismiss the complaint.

Ordered that the order is modified, on the law, by (1) deleting the provision thereof granting the plaintiff’s motion for a preliminary injunction and substituting therefor a provision denying that motion, and (2) deleting the provision thereof which denied the defendant’s cross motion to dismiss the complaint and substituting therefor a provision granting the cross motion; as so modified, the order is affirmed insofar as appealed and cross-appealed from, with costs to the defendant.

The plaintiff in this action has failed to establish that he holds any ownership interest in the subject premises or that he was a party immediately entitled to the real property upon the termination of the prior life estate pursuant to RPAPL 851. Therefore, the defendant’s motion to dismiss the plaintiff’s complaint pursuant to CPLR 3211 (a) (3) and (7) should have been granted.

The plaintiff’s assertion that his service of an amended complaint, subsequent to the issuance of the order cross-appealed from, has rendered the instant cross appeal moot is without merit. The allegation in the amended complaint that the plaintiff obtained a 50% ownership interest in the subject premises subsequent to the commencement of the instant action is entirely unsubstantiated by the record. Furthermore, this allegation is irrelevant as concerns those causes of action predicated upon RPAPL 851. In light of our determination on the defendant’s cross motion to dismiss the complaint, the plaintiff’s motion for a preliminary injunction must be denied. Thompson, J. P., Fiber, Balletta and O’Brien, JJ., concur.