Giuffrida v. Giuffrida

• Decision Date: 19 September 1996
• Citation: 649 N.Y.S.2d 773,170 Misc.2d 63
• Parties: John GIUFFRIDA, Petitioner, v. Stephan GIUFFRIDA, Respondent.
• Court: New York City Court

Page 773

649 N.Y.S.2d 773

170 Misc.2d 63

John GIUFFRIDA, Petitioner, v. Stephan GIUFFRIDA, Respondent.

City Court of Yonkers.

Sept. 19, 1996.

Barton Denis Eaton, White Plains, for petitioner.

Butler, Fitzgerald & Potter, New York City, for respondent.

ARTHUR J. DORAN, Jr., Judge.

Respondent, Stephen Giuffrida, moves this Court pursuant to CPLR § 3211 for an order dismissing this summary proceeding on the ground that the Court lacks subject matter jurisdiction. Petitioner, John Giuffrida, instituted this proceeding against Respondent, his son, seeking to evict him from premises known as 70 Massitoa Drive, Yonkers, asserting that Respondent is a "licensee/occupant, paying no rent and having no tenancy rights". In addition to the immediate eviction of Respondent, Petitioner seeks a monetary judgment for damages to the premises allegedly caused by Respondent, together with costs and counsel fees. The novel issue presented by the instant motion is whether a legally emancipated son, occupying premises co-owned by his parents, with the permission of his mother, may be the subject of a summary "licensee" proceeding pursuant to RPAPL § 713(7), instituted against him by his father.

The dispositive facts are undisputed. Respondent, the twenty-two-year old son of Petitioner and Beatrice Giuffrida, currently resides in the subject premises together with his mother, Beatrice Giuffrida, by her invitation. Petitioner and Beatrice Giuffrida are husband and wife, and are the co-owners of the subject premises. Significantly, Petitioner has been removed from the premises pursuant to an Order of Protection issued by the Family Court of Westchester County on behalf of Beatrice Giuffrida. ¹ The Order of Protection directs Petitioner to remain away from the home of Beatrice Giuffrida.

Also, on July 24, 1996, Petitioner commenced a divorce proceeding against Beatrice Giuffrida, which is presently pending in the Supreme Court, Westchester County. Recently, Beatrice Giuffrida filed a motion in the Supreme Court matrimonial action seeking pendente lite relief, including an order granting her the right to the exclusive possession of the subject premises.

In the instant motion to dismiss, Respondent argues that this Landlord/Tenant Court does not have jurisdiction to determine his right as a family member to reside in the subject premises and that this issue must be resolved in the Family Court and Supreme Court actions presently pending. In support of his motion, Respondent submits the affidavit of his mother, Beatrice Giuffrida, wherein she asserts that she, co-owner of the premises, invited Respondent to live there with her and that, thus, Respondent's right to occupy the premises flows directly from his relationship with her, and not by virtue of any license or agreement with Petitioner.

In opposition to the motion, Petitioner argues that issues presently pending before Family Court and Supreme Court pertain to his relationship with his wife, Beatrice Giuffrida, and are not relevant to this summary proceeding to recover possession of property from Respondent, his adult son. Petitioner further contends that even though he is currently not in physical possession of the premises, he, as a co-owner of the premises, has a right to determine who may reside there. He also asserts that he may prosecute this case as a co-owner without joining his wife as a necessary party.

Generally, one of two co-owners may maintain a summary proceeding without joining the other co-owner. See Martin v. Shields, 285 A.D. 106, 135 N.Y.S.2d 339 (3rd Dept.1954). However, in order for this Court to have subject matter jurisdiction, there must be statutory authority for Petitioner to bring the summary proceeding in the first instance. It is well settled that summary proceedings are creations of statute and that, therefore, there must be strict adherence to the governing statutory provisions. Zenila Realty Corp. v. Masterandrea, 123 Misc.2d 1, 472 N.Y.S.2d 980 (Civ.Ct., City of NY, 1984).

Real Property Actions and Proceedings Law (RPAPL) § 713 enumerates the specific instances where a summary proceeding may be maintained even though no Landlord-Tenant relationship exists between the parties. It is beyond dispute that there is no Landlord-Tenant relationship between the parties here. Indeed, in the petition itself, Petitioner characterizes Respondent as a "licensee". Thus, the Court must determine whether Respondent is in fact a "licensee" within the purview of RPAPL § 713.

RPAPL § 713(7), the statutory provision creating the summary "licensee"...