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Petitioner Brings Lawsuit Regarding Licensing Issue



In this summary license holdover proceeding commenced pursuant to Real Property Actions and Proceedings Law (“RPAPL”) § 713(7), petitioners seek to recover possession of the premises located at 173 Lake Drive, Wyandanch, New York (“the Subject Property”). Petitioners contend that the license of respondent to occupy the Subject Property has been revoked.

Most of the dispositive issues were undisputed. Petitioners are the owners of the Subject Property. In or about May or June 2007, Respondent moved into the Subject Property with her paramour petitioner’s son after learning she was pregnant with Nicholas. Mr. Robinson is the biological father of respondent. The parties acknowledged that there are no custody or child support matters pending.

From May 2007 through about December 2007, petitioner and respondent resided together at the Subject Property. Petitioner, who resides in the property adjoining the Subject Property, was aware that respondent had moved into the property with her son. From about December 2007 — March 2009, while petitioner was incarcerated, respondent continued to reside in the Subject Property without him. Respondent’s son was born on February 4, 2008 and has lived in the Subject Property with her since birth. Apparently, petitioner and respondent at some point had become engaged, but never married, and according to respondent, the engagement ended in April 2009. Petitioner has since returned to prison and, according to him, it is anticipated that her son will be released in or about January 2010.

It is undisputed that respondent has continued to reside in the Subject Property uninterrupted for a period of more than two (2) years. There was no testimony that petitioner ever resided in the Subject Property. Petitioner is listed as the sole borrower on the mortgage for the Subject Property, and according to the credible documentary evidence, the Subject Property is the subject of a foreclosure proceeding pending in Suffolk County Supreme Court (Petitioners’ Exhibit 6). In or about September 2008, he deeded one-half interest in the Subject Property to him to assist with the mortgage arrears.

Although identified as Petitioners herein, who remains incarcerated and was not called to testify as a witness in this action, neither signed the 10-day Notice to Quit nor the Petition. Instead, he signed in his stead pursuant to a Power of Attorney granting her authority to handle his property that was executed by petitioner’s son on or about August 18, 2008. The Court notes that notwithstanding the above, either Petitioner could have commenced the instant proceeding. Although the parties dispute whether he in fact wishes to evict the mother of his son and his son from the Subject Property, neither party introduced any evidence in admissible form regarding his intentions.

Respondent asserts that she is not a licensee but rather she is lawfully in possession due to the familial relationship between she and the owners of the Subject Property, the father and grandmother of Respondent’s child, and, as such, she may not be evicted in a summary proceeding. The question before this Court is given the circumstances of this case, whether Petitioners may bring a summary license holdover proceeding under RPAPL § 713(7) against the mother of petitioner’s son and his grandchild in addition to the toddler child himself for the purpose of evicting them from the Subject Property. The Court answers that question in the negative.

Section 713(7) of the RPAPL provides, in pertinent part, that a summary proceeding may be brought to recover possession of real property after notice has been made if the respondent “is a licensee of the person entitled to possession of the property at the time of the license, and a the license has expired, or b the license has been revoked, or [c] the licensor is no longer entitled to possession of the property”. It is well-established that a licensee is “one who enters upon or occupies lands by permission, express or implied, of the owner, or under a personal, revocable, non-assignable privilege from the owner, without possessing any interest in the property, and who becomes a trespasser thereon upon revocation of the permission of the privilege”.

The issue of family members evicting other family members and former paramours evicting one another has been percolating throughout the State’s courts. Oddly, the pertinent statutes provide limited guidance in determining the type of relationship which is the ultimate issue in these proceedings because the type of relationship determines (a) whether a summary proceeding may be commenced and (b) the type of predicate notice required; i.e. 10-day Notice to Quit for licensees or 30-day Notice for tenants-at-will.

Conversely, there have been courts that have permitted a family member or former paramour to be evicted as a licensee. Most recently, in Lally, supra, a case where a license holdover proceeding was permitted against the petitioner’s daughter-in-law, the Court poignantly distinguished the cases that permit licensee “familial” proceedings from those that do not. The Court noted that “whether the parties resided together [while not the sole factor] has often been the `critical factor’ in determining whether they are considered to be a `family’ for legal purposes. Another consideration was whether there was a duty of the property owner to support the alleged licensees. Encompassed in the duty to support is the parties’ social and financial dependence”. The determination as to the party’s status is to be made by the court on a case-by-case basis.

In the instant matter, it is undisputed that petitioner and Respondent resided together in the Subject Property prior to his incarceration. Moreover, the credible testimony suggested that Respondent paid the utilities but was under no obligation to pay rent or the mortgage arrears. In addition, there was no credible evidence suggesting, expressly or impliedly, that respondent’s occupancy was a leasing of the Subject Property or that she was in possession at the will of the petitioner. To the contrary, petitioner and respondent have a child together to whom they are both responsible and obligated to provide for his care and well-being. Their joint occupancy in the Subject Property began because of their son and there was no credible evidence presented from which it can be concluded that they will not continue to reside together upon his eventual release from incarceration.

It was further undisputed that respondent has been residing in the Subject Property without petitioner for a majority of her two (2) year occupancy and there was no proof that she did not have exclusive possession of the Subject Property. To the contrary, the credible testimony reasonably suggested that Petitioners acquiesced to her occupancy and she continues to have exclusive possession.

Accordingly, respondent’s occupancy does not constitute a licensee agreement, and, therefore, Petitioners cannot succeed in this summary license holdover proceeding.

This case poses what would appear to be an issue of first impression; namely, does the familial exception to eviction by a summary proceeding apply where a grandmother and unmarried father seek to evict the mother of their grandchild and child, respectively, after the mother was given and maintains exclusive possession of the Subject Property because of the minor child and further where the petitioner father is incarcerated?

The familial exception is derived from the Rosenstiel decision, supra, wherein the Appellate Division, First Department held that a husband may not evict his wife from the marital residence because until the divorce was final, the “marriage relationship” was still in tact. Several years after Rosenstiel, the Court of Appeals expanded the familial exception to include domestic partners holding that a significant factor in determining whether the familial exception is applicable is whether the parties resided together as a family unit with “some indicia of permanence or continuity”. The Court determined that “the term family should not be rigidly restricted to those people who have formalized their relationship by obtaining, for instance, a marriage certificate. The intended protection against sudden eviction should not rest on fictitious legal distinctions or genetic history, but instead should find its foundation in the reality of family life” (Id.).

As indicated above, numerous courts have since further extended the familial exception to include unmarried mothers, grandchildren, adult children and stepchildren. Based upon the credible testimony and documentary evidence, the Court concludes that the familial exception to eviction in a summary proceeding is applicable to respondent. The Court’s determination is not intended to create a bright-line rule for each and every instance in which a grandparent and/or unmarried parent seeks to evict the child’s other parent. Rather, each determination and application of the familial exception must be based on the particular facts and the credible testimony and documentary evidence presented.

Although not an ideal familial situation, the instant matter depicts a “family” under the modern more flexible approach to the family unit. It was undisputed that respondent moved into the Subject Property with Mr. Robinson because she had become pregnant with their child. A brief engagement ensued which was eventually broken but she continues to reside in the Subject Property and cares for their child. Further, she is clearly the sole provider for the child during petitioner’s incarceration. The interdependency and support between petitioner and respondent is centered around Nicholas and will continue to do so no matter where he resides and/or if they ever decide to marry. Moreover, respondent’s testimony describing her intention to remain a family unit was not refuted by petitioner who did not testify.

The circumstances here are based on the parties’ reality of family life. Moreover, notwithstanding the pending foreclosure, there was “indicia of permanence or continuity” in this family relationship. Other than petitioner’s complaint regarding her apparent lack of a relationship with her grandson, Petitioners failed to introduce any credible evidence that the family relationship was about to dissolve or change.

The Court is mindful, however, that but for the child, Petitioners would perhaps be permitted to evict respondent. However, the reality is that petitioner and respondent have a child who has been residing in their property for his entire life with his mother. While it is anticipated that the pending foreclosure may require respondent and her son (as well as another child of her from another relationship) to vacate the Subject Property, Respondent’s right to remain in the Subject Property cannot be revoked through a summary proceeding.

The issues involving the John and Jane Does, as minor children, in no way alters the result against the Respondent. Initially, since there was no proof of service of the Notice of Petition and/or Petition in the Court’s file upon a John or Jane Doe, the Petition is dismissed as against them.

The Court notes, however, that notwithstanding the lack of service on the Does, “a father has the obligation to provide support to his children” including providing shelter (Family Court Act §§ 413, 513). The United States Supreme Court has held that children born out of wedlock are afforded the same right to support as those born within a marriage. Therefore, petitioner could not maintain this action against his son even if service had been effectuated upon the toddler.

Accordingly, it is hereby ordered that the Petition is dismissed.

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