Blake v. Stradford

• Decision Date: 24 April 2001
• Citation: 725 N.Y.S.2d 189,188 Misc.2d 347
• Parties: EASTON BLAKE, Petitioner,<BR>v.<BR>KIM STRADFORD et al., Respondents.
• Court: New York District Court

188 Misc.2d 347

725 N.Y.S.2d 189

EASTON BLAKE, Petitioner,

v.KIM STRADFORD et al., Respondents.

April 24, 2001.

Falk & Klebanoff, P. C., for petitioner.

William D. Friedman for Kim Stradford, respondent.

OPINION OF THE COURT

SCOTT FAIRGRIEVE, J.

This case appears to be a case of first impression, created not only by the circumstances of the parties, but also by the unique jurisdictional configuration of the New York court system. The Court's research has not uncovered a case in which a petitioner sought to evict from a premises, owned solely by the petitioner and formerly occupied by all parties, an ex-domestic partner, who had minor children with the petitioner.

In this proceeding, Easton Blake (hereinafter petitioner) commenced a summary proceeding against his ex-domestic partner, Kim Stradford (hereinafter respondent), and a "John and Jane Doe." The "John and Jane Doe" referred to in the petition are the minor, out-of-wedlock, children of the petitioner and respondent. The petitioner seeks to evict the respondent and their minor children from the premises, known as 485 Pinebrook Avenue, West Hempstead, New York 11552.

The petitioner's position is that the respondent, his ex-domestic partner, with whom he cohabited in the subject premises, is a "licensee," and the license has now been revoked. The petitioner claims that the Court has jurisdiction to issue a warrant of eviction to have the respondent and their minor children removed from possession of the subject premises.

The respondent raises three defenses to this proceeding. First, she claims as the ex-domestic partner of the petitioner that there are sufficient implied and actual equitable and legal issues to be resolved by the dissolution of this domestic partnership to deny this Court from having jurisdiction to evict her as a "licensee." Second, she claims that there is a derivative relationship with the petitioner (by residing in the family home with their minor children) which would deny this Court from having jurisdiction to evict her. Third, the Court should abstain from exercising its jurisdiction in this proceeding in the interests of judicial efficiency, as it would be better to have the dissolution of the family litigated in a forum which can best protect the interests of the parties and particularly the children of this domestic partnership.

Based upon the credible evidence adduced at trial, the Court makes the following findings of fact and conclusions of law:

Findings of Fact

In this proceeding, the parties do not dispute the dispositive facts. In January of 1989, the petitioner purchased a premises known as 485 Pinebrook Avenue, West Hempstead, New York. A certified copy of the deed to the premises was offered into evidence, although the respondent concedes that her name does not appear on the deed or mortgage. The monthly mortgage payment for the premises at issue is $1,350 per month.

In April of 1994, the parties had a child out of wedlock. In December of 1997, the respondent and the parties' minor child moved into the subject premises with the petitioner. At the time that the respondent moved into the premises in question, there was no written agreement between the parties with regard to the subject premises and the respondent was not married to the petitioner. However, the parties were involved in a relationship, as boyfriend and girlfriend, and had been involved for some time. In July of 1999, the parties' second child was born out of wedlock.

Sometime after the birth of the parties' second child, in early 2000, the relationship between the parties failed. Soon thereafter, the respondent brought a Family Court proceeding for child support of the parties' two minor children. As a result of this proceeding, a Family Court order of support was issued. In May of 2000, the respondent commenced another Family Court proceeding. This proceeding was to obtain a protective order. On December 1, 2000, an order of protection was ordered by the Nassau County Family Court, in favor of the respondent and against the petitioner, upon default of the petitioner. The order of protection stated, in pertinent part, the following:

"Now, therefore, on default it is hereby ordered that * * * Easton B. Blake observe the following conditions of behavior:

"Stay away from Kim Stradford, and/or from the home of Kim Stradford, located at 485 Pinebrook Avenue, Lakeview, New York * * * or wherever she may be, except when appearing for visitation as agreed upon between the parties or as per court order—curbside pick-up and drop-off."

Shortly after the order of protection was issued, the petitioner demanded that the respondent leave the premises. In December of 2000, the petitioner served the respondent a 10-day notice to vacate the premises. In January of 2001, the petitioner commenced a holdover proceeding to obtain exclusive possession of the premises in question, on the ground that the respondent is a "licensee" whose license has been terminated by the proper notice and service under RPAPL 713 (7). The respondent waived any defects in the 10-day notice, the petition and any jurisdictional defects.

At the commencement of this proceeding there was no support or custody order in effect. The order of protection, however, was in effect.

Conclusions of Law

The novel issue presented by this proceeding is whether the respondent, an ex-domestic partner of the petitioner, and the two minor children of the petitioner and respondent may be the subject of a summary "licensee" proceeding, pursuant to RPAPL 713 (7).

In order for this Court to have subject matter jurisdiction, there must be statutory authority permitting the petitioner to bring this summary proceeding. "It is well settled that summary proceedings are creations of statute and that, therefore, there must be strict adherence to the governing statutory provisions" (Giuffrida v Giuffrida, 170 Misc 2d 63, 65 [Yonkers City Ct 1996], citing Zenila Realty Corp. v Masterandrea, 123 Misc 2d 1 [Civ Ct, NY County 1984]).

The Nassau County District Court has jurisdiction of summary proceedings to recover possession of real property located in whole or in part within a district of the court in the County of Nassau, to remove tenants therefrom, and to render judgment for rent due without regard to amount (UDCA 204; RPAPL 701). RPAPL 713 sets forth the grounds for summary proceedings where no landlord-tenant relationship exists between the parties.

"A special proceeding may be maintained * * * after a ten-day notice to quit has been served upon the respondent * * * upon the * * * grounds

"[that] [h]e is a licensee of the person entitled to possession of the property at the time of the license, and (a) his license has expired, or (b) his license has been revoked by the licensor, or (c) the licensor is no longer entitled to possession of the property" (RPAPL 713 [7]).

"As generally understood in the law of real property, a licensee is one who enters upon or occupies lands by permission, express or implied, of the owner, or under a personal, revocable, nonassignable privilege from the owner, without possessing any interest in the property, and who becomes a trespasser thereon upon revocation of the permission or privilege" (Rosenstiel v Rosenstiel, 20 AD2d 71, 76 [1st Dept 1963]).

Accordingly, this Court finds that the respondent is a "licensee" and the Nassau County District Court does have subject matter jurisdiction over the proceeding.

Respondent's First and Second Defenses

The Court rejects the respondent's first defense. Although RPAPL 743 provides that an answer in a summary proceeding may contain "any legal or equitable defense," the respondent's equitable defense that this Court does not have jurisdiction to evict her upon the ground that she is not a "licensee," because of her status as a "domestic partner," is simply without merit.

The law is clear that if the respondent's status was that of a "wife" she would not be considered the mere "licensee" of her husband and could not be evicted under RPAPL 713 (7) (Rosenstiel v Rosenstiel, 20 AD2d 71, supra). The occupation of a marital home by a wife is not possession existing by virtue of the permission of her husband. Her possession of the premises exists because of special rights incidental to the marriage contract and relationship. "As long as the marriage relationship stands, unabridged by court decree or valid agreement between the parties, the husband has the obligation by virtue thereof to support and maintain his wife" (Rosenstiel v Rosenstiel, 20 AD2d, at 76-77). In the instant case, however, the respondent is not cloaked with the status of "wife."

The respondent's first defense is largely based upon a decision of the Civil Court of the City of New York, Bronx County, in Minors v Tyler (137 Misc 2d 505 [1987]). The Civil Court found that it did not have subject matter jurisdiction to evict a former cohabitant, in that the former cohabitant was not considered a "licensee." This Court disagrees with the Civil Court's decision and is bound by the Court of Appeals. The Court of Appeals has clearly held that "cohabitation without marriage does not give rise to the property and financial rights which normally attend the marital relation" (see Morone v Morone, 50 NY2d 481, 486 [1980]).

Moreover, the New York State Legislature has not sought fit to enact statutes to protect the property rights of "domestic partners." In fact, the New York State Legislature has made it clear that it will not permit common-law marriages to be established in New York. Common-law marriages were abolished in New York State on April 29, 1933, as a result of a legislative amendment to section 11 of the Domestic Relations Law (45 NY Jur 2d, Domestic Relations, § 49). Accordingly, the respondent cannot claim to be protected by rights bestowed a common-law marriage. The rights and obligations that are bestowed a legal marriage or a common-law marriage do not arise in New York State, when part...