A New York Family Lawyer said that in this summary licensee holdover proceeding brought under RPAPL 713 (7), petitioner seeks to evict respondents, his former girlfriend, their three-year-old son; and petitioner’s daughter from a different relationship.
A Nassau County child support attorney said that petitioner and Respondent’s relationship has turned sour. Pending in Criminal Court, New York County, is a prosecution against Petitioner for the class “A” misdemeanor of Aggravated Harassment allegedly committed against Respondent. Criminal Court in that action has issued a temporary order of protection against Petitioner in Respondent and the son’s favor. Also pending are custody, visitation, and support proceedings in Family Court, New York County. Family Court has awarded temporary custody of the son to Respondent.
A New York Child Custody Lawyer said the respondents now move to dismiss the petition or, in the alternative, to stay this proceeding pending Family Court’s final determinations. She argues that Petitioner may not bring a licensee proceeding against Respondent. According to Respondent, she is not a licensee whose license Petitioner may revoke.
The court denies the motion. Civil Court has subject-matter jurisdiction over this proceeding, and Petitioner has stated a cause of action. In making that determination, this court does not suggest that petitioner can or will prevail at trial, but merely that a trial is required.
The case law is divided on whether someone may prevail in a licensee proceeding against a former paramour. Forbidding in many circumstances a licensee proceeding against a former paramour are numerous case laws.
A Nassau County Family Lawyer said part of the division focuses on facts that arise here and whose inferences and weight the parties dispute: whether the parties moved into the subject premises together; how long they lived together; whether they held themselves out as husband and wife or as nontraditional family members; whether they have a child in common; whether they shared household expenses; whether the supposed licensee contributed toward the home’s purchase price, maintenance, or improvements; and what type of home is at issue—a rent-regulated unit, real property like a house or condominium, or personal property like shares appurtenant to a cooperative unit.
A Nassau County Child Custody Lawyer said the trial court will find and apply facts and decide which line of authority to follow.
That said, the parties do not dispute a key, determinative fact: that the son is their minor son. Petitioner may not evict his son, because a party may not evict a family member in an RPAPL 713 (7) summary licensee holdover proceeding.
In one of the cases favoring petitioner, the court allowed a party to bring a licensee proceeding against a former paramour. In such case, the court awarded a judgment after trial against the petitioner’s former paramour even though, like here, an order of protection existed and even though, also like here, Family Court custody and support proceedings were pending. The court nevertheless dismissed the proceeding as to the petitioner’s children. The court does the same: It dismisses, under CPLR 3211 (a) (7), the petition against the son. A parent has the obligation to support and house a minor child.
This ruling, required by law, has the effect of allowing a trial as to Respondent but not as to The son, the parties’ son. Respondent has been awarded temporary custody of the son, and Respondent lives in the subject apartment with The son. The practical problem is that despite the petition’s being dismissed against The son, he might be evicted because he mother might be evicted. This court must forbid that result. As the Appellate Term noted in a case, “should landlord prevail upon the trial, it may well be inappropriate to allow landlord to execute a warrant that will have the effect of evicting his child. Putting effect to that statement, the Appellate Tem noted in said case in 2007 that “an eviction may not occur absent an order that clearly includes an allowance for alternative housing for the parties’ minor child”
Respondents’ motion to stay this proceeding pending the Family Court proceedings is denied, but without prejudice to renewal. If Petitioner prevails at trial against Respondent, the execution of the warrant of eviction must be stayed for however long it will take for Family Court to resolve custody and support issues affecting where and with whom the son will live. If Petitioner prevails, this court or the trial court will consider granting a stay whose contours will be conditioned on various equitable factors that will assure that Family Court has the time, opportunity, and wherewithal, consistent with the parties’ due-process rights, to direct safe and habitable housing for the son.
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