Heckman v. Heckman, 2015-2003SC

• Citation: 55 Misc.3d 86,50 N.Y.S.3d 793
• Decision Date: 13 April 2017
• Docket Number: NO. 2015-2003SC,2015-2003SC
• Parties: Erica HECKMAN, as Trustee of the Catherine Mary Ann Heckman Trust–2014, Appellant, v. Danielle HECKMAN, Respondent.
• Court: New York Supreme Court — Appellate Term

55 Misc.3d 86

50 N.Y.S.3d 793

Erica HECKMAN, as Trustee of the Catherine Mary Ann Heckman Trust–2014, Appellant,

v.Danielle HECKMAN, Respondent.

NO. 2015-2003SC

Supreme Court, Appellate Term, Second Dept., 9 and 10 Judicial Dist.

April 13, 2017.

Carway & Flipse (Adrienne Flipse Hausch, Esq.), for appellant.

Sunshine & Fernstein, LLP, for respondent (no brief filed).

PRESENT: ANTHONY MARANO, P.J., ANGELA G. IANNACCI, JERRY GARGUILO, JJ.

Appeal from a decision of the District Court of Suffolk County, Second District (James F. Matthews, J.), dated May 8, 2015, deemed from a final judgment of the same court entered May 8, 2015 (see CPLR 5512[a] ). The final judgment, after a nonjury trial, dismissed the petition in a summary proceeding brought pursuant to, among other provisions, RPAPL 713(7).

ORDERED that the final judgment is reversed, without costs, and the matter is remitted to the District Court for the entry of a final judgment awarding possession to petitioner.

Petitioner, the daughter of the deceased former owner of the subject premises and the trustee of a trust which the former owner had established and which is the current owner of the subject premises, brought this summary proceeding in her capacity as trustee, pursuant to, among other provisions, RPAPL 713(7), alleging, insofar as relevant to this appeal, that occupant, the daughter-in-law of the deceased former owner, is a licensee whose license has been revoked. Following a nonjury trial, the District Court, finding that occupant is a licensee but that occupant had established the applicability of the so-called "familial exception" to eviction by summary proceeding, dismissed the petition.

A summary proceeding may be maintained only where authorized by statute (see Dulberg v. Ebenhart, 68 A.D.2d 323, 328, 417 N.Y.S.2d 71 [1979] ). RPAPL 713 is the statutory source for summary proceedings where there is no landlord-tenant relationship between the parties (see Federal Natl. Mtge. Assn. v. Simmons, 48 Misc.3d 24, 26, 12 N.Y.S.3d 487 [App.Term, 1st Dept.2015] ). Insofar as is relevant here, RPAPL 713(7)(b) permits the maintenance of a summary proceeding against persons who are in occupancy of real property pursuant to a license which has been revoked. Here, the District Court, while finding that occupant is a licensee, nevertheless refused to allow petitioner, in her capacity as trustee, to avail herself of this statutory remedy, invoking the so-called "familial exception." However, the relevant appellate case law provides no basis for a court, upon determining that an individual falls within a category of respondents that are subject to eviction pursuant to RPAPL 713 (or for that matter RPAPL 711 ), to dismiss the petition because of a "familial exception." Consequently, and for the reasons stated below, we reverse and grant a final judgment of possession to petitioner.

Analysis of this issue begins with Rosenstiel v. Rosenstiel, 20 A.D.2d 71, 76, 245 N.Y.S.2d 395 (1963), in which the Appellate Division held that a summary proceeding by a husband against a wife did not lie in a situation where "possession of the premises exists because of special rights incidental to the marriage contract and relationship," and not by virtue of a license or any other special arrangement with her husband. The court's determination that the respondent could not be found to be a licensee was based upon the existence of a support obligation (id. at 77, 245 N.Y.S.2d 395 ), which obligation is recognized to extend to either spouse and to minor children (see generally Family Ct. Act § 412 ). However, in situations in which such an obligation did not exist or had been fully satisfied, appellate courts have found the existence of a license and allowed the maintenance of summary proceedings by a husband against his wife (see Halaby v. Halaby, 44 A.D.2d 495, 355 N.Y.S.2d 671 [1974] ; Tausik v. Tausik, 11 A.D.2d 144, 202 N.Y.S.2d 82 [1960], affd. 9 N.Y.2d 664, 212 N.Y.S.2d 76, 173 N.E.2d 51 [1961] ) and by a decedent's estate against the decedent's cohabitant (see Young v. Carruth, 89 A.D.2d 466, 455 N.Y.S.2d 776 [1982] ).

Despite these appellate cases, some lower courts began to rely on Rosenstiel, even in the absence of legal support obligations, to hold that a summary proceeding against an unmarried cohabitant did not lie because "unmarried occupants who reside together as husband and wife acquire some rights with respect to continued occupancy of the apartment they shared not unlike those acquired by a spouse" (Minors v. Tyler, 137 Misc.2d 505, 507, 521 N.Y.S.2d 380 [Civ.Ct., Bronx County 1987] ; but see Young, 89 A.D.2d at 469, 455 N.Y.S.2d 776 ), thus creating what became known as the "familial exception" to the maintenance of a summary proceeding brought pursuant to RPAPL 713(7).

In Braschi v. Stahl Assoc. Co., 74 N.Y.2d 201, 544 N.Y.S.2d 784, 543 N.E.2d 49 (1989), the Court of Appeals "interpreted a regulation [9 NYCRR 2204.6(d) ] prohibiting a landlord of a rent-controlled building from evicting a member of the deceased tenant's family' to include relationships which are not by blood or marriage" (Preferred Mut. Ins. Co. v. Pine, 44 A.D.3d 636, 640, 848 N.Y.S.2d 190 [2007] ). Thereafter, some lower courts began to rely on Braschi to hold that individuals who fit within this expanded definition of "family" were protected, under Rosenstiel, from eviction by a "family" member via a summary proceeding (see e.g. Kakwani v. Kakwani, 40 Misc.3d 627, 967 N.Y.S.2d 827 [Nassau Dist.Ct.2013] ; Robinson v. Holder, 24 Misc.3d 1232[A], 2009 N.Y. Slip Op. 51706[U], 2009 WL 2413829 [Suffolk Dist.Ct.2009] ; Williams v. Williams, 13 Misc.3d 395, 822 N.Y.S.2d 415 [Civ.Ct., N.Y. County 2006] ; DeJesus v. Rodriguez, 196 Misc.2d 881, 768 N.Y.S.2d 126 [Civ.Ct., Richmond County 2003] ; but see Piotrowski v. Little, 30 Misc.3d 609, 911 N.Y.S.2d 583 [Middletown City Ct.2010] ; Drost v. Hookey, 25 Misc.3d 210, 881 N.Y.S.2d 839 [Suffolk Dist.Ct.2009] ; Lally v. Fasano, 23 Misc.3d 938, 875 N.Y.S.2d 750 [Nassau Dist.Ct.2009] ). However, since Rosenstiel does not provide a basis for the creation of a bar to the maintenance of summary proceedings in situations where there is no legal support obligation (see Young, 89 A.D.2d 466, 455 N.Y.S.2d 776 ; Halaby, 44 A.D.2d 495, 355 N.Y.S.2d 671 ; Tausik, 11 A.D.2d 144, 202 N.Y.S.2d 82, affd. 9 N.Y.2d 664, 212 N.Y.S.2d 76, 173 N.E.2d 51 ), there was no "familial exception" to expand pursuant to Braschi. In any event, Braschi merely expanded the statutory right to succeed to rent-controlled tenancies, which was already enjoyed by traditional family members, to individuals who were recognized as family members by society, and its holding has no bearing here (see Preferred Mut. Ins. Co., 44 A.D.3d at 640, 848 N.Y.S.2d 190 ["The expansive definition of family set forth in Braschi .... has no bearing on interpreting different statutes with different statutory purposes" or on the interpretation of contractual provisions] ).

In view of the foregoing, and in conformity with the decisions of the Appellate Term for the Second, Eleventh and Thirteenth Judicial Districts (see Pugliese v. Pugliese, 51 Misc.3d 140[A], 2016 N.Y. Slip Op. 50614[U], 2016 WL 1590776 [App.Term, 2d Dept., 2d, 11th & 13th Jud.Dists.2016]; see also Odekhiran v. Pearce, 54...