Cardosanto v. Cardosanto
| Decision Date | 01 April 1958 |
| Citation | 172 N.Y.S.2d 684,10 Misc.2d 302 |
| Parties | Concetta CARDOSANTO, Landlord, v. Estelle Mikaliunas CARDOSANTO, Tenant. |
| Court | New York City Municipal Court |
Harry M. Krokow, New York City, for landlord.
L. M. Kooperstein, New York City, for tenant.
This is a summary proceeding brought by the owner of a one-family house to recover possession of said real property pursuant to Section 1411, Subdivision 8, Civil Practice Act, which provides--for the removal of tenants and others in possession and which pertinent language is as follows--'A person who holds over and continues in possession of real property after notice to quit * * *:
'In any case not otherwise provided for in this article, where he 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to possession of the property at the time of the license, and (a) his license has expired, or (b) his license has been revoked by the licensor, or (c) the licensor is no longer entitled to possession of the property * * *.'
Although there appears to be some controversy with respect to the ownership of the property involved, the martial status of the owner of the property and the occupant of said property and the relationship between the parties to this proceeding, and although there may be some reference in this opinion to the foregoing, this Court is deciding the question on the basis that the occupant was not a licensee as defined in said Section 1411, subd. 8, Civil Practice Act.
This Court has searched diligently without avail for cases which were decided subsequent to 1951, which was the effective date of the aforesaid subdivision, and therefore must rely on the thinking of the Courts with respect to comparable situations prior to 1951 and such information as could have been obtained in the reports, recommendations and studies of the Law Revision Commission which was given to the Legislature of the State of New York before the enactment of the aforesaid section.
The Court is attempting to consider the application of the petitioner in the most favorable light in spite of a somewhat confusing record as to the relationship between the parties. At the outset the Court is disregarding the designation of landlord and tenant appearing in the caption of the proceeding as same has been amended during the course of trial to read owner and occupant.
It is the contention of the petitioner-owner that one Lamberto Cardosanto married the owner-petitioner in 1927 and bore him three children, was legally separated in 1935, and in 1956 said Lamberto Cardosanto obtained a Mexican mail order divorce from said owner-petitioner.
That said Lamberto Cardosanto purchased the premises in question in 1954 and took possession of same. That said Lamberto Cardosanto married the occupant in 1956 and resided in said premises as husband and wife with her until 1957 when said Lamberto Cardosanto left said premises leaving the occupant in possession.
That said Lamberto Cardosanto thereafter conveyed said premises to the petitioner-owner in order to satisfy a demand for alimony arrears, and now petitioner-owner after a notice to quit to the occupant desires possession of the premises by reason of Section 1411 Subd. 8, Civil Pract. Act. It is the contention of the petitioner-owner that the occupant is a licensee as described in said subdivision and since the licensor, Lamberto Cardosanto, surrendered possession of the premises and conveyed the same to the petitioner-owner, then in such event by reason of such section and subdivision the petitioner-owner is entitled to possession.
Previous reported cases where a husband who was separated from his wife sought possession of premises by summary proceedings held that where the original entry of a wife upon premises used as a dwelling for herself and husband having been lawful, she was not an intruder or squatter; hence, the husband, could not, after having left the wife and taken up separate residence elsewhere, compel her summary removal under Subd. 4 of Section 1411 of the Civil Practice Act. Brooks v. Brooks, 146 Misc. 335, 261 N.Y.S. 211. Likewise in the case of Mele v. Russo, 168 Misc. 760, 9 N.Y.S.2d 203, we found a situation where a husband and wife that formerly lived on the premises sought to be recovered and where the husband separated from his wife and the wife remained in possession of the premises after the husband had given a deed of the premises to the petitioners, who were his children of a former marriage and not the children of the occupant. This proceeding was brought prior to 1951 and pursuant to Section 1411, Subd. 4, Civil Practice Act, and the Court held that the occupant who entered upon the lands in question by right is the wife of the owner, and since such occupancy was lawful she cannot now be held to be a squatter or intruder. And that summary proceedings was not the proper remedy for recovery of realty from a trespasser.
It is the theory of the owner that the Civil Practice Act was amended to avoid the necessity of a long burdensome and expensive...
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Tausik v. Tausik
...situation the law has provided a new remedy to the spouse with a legal right to possession--a summary proceeding (Cardosanto v. Cardosanto, 10 Misc.2d 302, 172 N.Y.S.2d 684, reversed 15 Misc.2d 1001, 186 N.Y.S.2d Final order affirmed, with $25 costs. Appeal from order dismissed. AURELIO and......
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Tausik v. Tausik
...remains without right on the premises after separation, it has been held as not covering such specific situation. Cardosanto v. Cardosanto, 10 Misc.2d 302, 172 N.Y.S.2d 684. This Court cannot agree with the rationale there stated. That determination was reversed on appeal, 15 Misc.2d 1001, ......