Bianci v. Shanley

• Docket Number: Index No. LT-26-2023
• Decision Date: 25 May 2023
• Parties: MICHAEL P. BIANCI, ADMINISTRATOR OF THE ESTATE OF BABARA JEAN MILCH Petitioner v. JOHN J. SHANLEY, Respondent.
• Court: New York City Court

1

2023 NY Slip Op 31776(U)

MICHAEL P. BIANCI, ADMINISTRATOR OF THE ESTATE OF BABARA JEAN MILCH Petitioner
v.
JOHN J. SHANLEY, Respondent.

Index No. LT-26-2023

City Court of Peekskill, Westchester County

May 25, 2023

Unpublished Opinion

To: Law Offices of Keane & Beane, P.C. Attorneys for Petitioner

James G. Dibbini & Associates, P.C. Attorneys for Respondent

DECISION AND ORDER

Reginald J. Johnson Judge

The Respondent, by his attorney James G. Dibbini &Associates, P.C., moved to dismiss this summary proceeding based on the ground that he was a family member of the late Barbara Jean Milch (the "decedent") and not a squatter. The Petitioner, by his attorney Keane &Beane, P.C., opposed the motion to dismiss and cross moved for summary judgment on the grounds that Respondent was not a family member of the decedent, that he was never given a license by the decedent to live at the premises, and that he is now a squatter. The Respondent opposed the Petitioner's cross motion for summary judgment and submitted a reply affirmation in further support of Respondent's motion to dismiss.

Procedural History

On January 18, 2023, the Petitioner commenced this summary proceeding against the Respondent on the ground that he was a squatter. On February 7, 2023, the parties were scheduled for a first appearance which was adjourned to March 21, 2023, by Respondent. On March 21, the parties appeared and Respondent requested a motion schedule. The Court set the motion schedule as follows: motion by April 11, 2023; opposition by April 18, 2023; reply, if any by April 25, 2023; and a decision by May 25, 2023. By stipulation dated April 17, 2023, the parties agreed to change and extend the motion schedule as follows: Petitioner's opposition to Respondent's motion to dismiss and to serve and file Petitioner's cross motion for summary judgment was extended through and including May 2, 2023; Respondent to serve and file his written reply in further support of his motion to dismiss was

2

extended through and including May 9, 2023; Respondent to serve and file his opposition to Petitioner's cross motion for summary judgment was extended through and including May 23, 2023; and Petitioner to serve and file his reply in further support of his cross motion to dismiss was extended through and including May 31, 2023. The Court marked the motions fully submitted on May 22, 2023.

Factual History

Petitioner's decedent took title to 1259 Maple Ave, Peekskill, New York 10566 (the "premises") on May 12, 1999 (Petition at ¶ 4). On October 10, 2022, Barbara Jean Milch died and on November 25, 2022, Letters Testamentary, without limitations, were issued to Petitioner (Id. at ¶¶ 5-6). On December 3, 2022, the Petitioner served the Respondent with a Ten-Day Notice to Quit (Id. at ¶ 9). The Respondent resided at the premises full time for about 8 years in between college and the time he met his now ex-wife (Shanley Affid. at ¶ 10). Respondent moved out of the premises for a period of 3 years in or around 2002 while his home was being built a short distance down the street from the premises (Id. at ¶ 11). After the Respondent's home was built, he moved into it with his ex-wife until they divorced, and then he moved back into the premises in or around June of 2019 (Id. at ¶¶ 1617). Respondent stated that the decedent permitted him to move back into the premises "[i]n the interest of ensuring stability for my children and to provide emotional support to me during my divorce" (Id. at ¶ 17).

Respondent claimed that he is a family member because he went on vacations and celebrated holidays with the Milch family, and that he continuously resided at the premises for periods of time (Id. at ¶ 15). Respondent referred to decedent as his mother and she referred to him as her son; she paid for his children's school fees; and his children have a room inside the premises and their artwork is displayed throughout the premises (Id. at ¶¶ 14, 18). Lastly, Respondent claimed that the decedent offered to subdivide the premises so that he could build a house for himself, but she died before that could happen (Id. at ¶ 19).

Petitioner stated that Respondent "currently occupies the Premises pursuant to an oral license previously given by Barbara Jean Milch [Decedent] prior to her death on October...