Kakwani v. Kakwani

• Decision Date: 20 June 2013
• Citation: 2013 N.Y. Slip Op. 23200,40 Misc.3d 627,967 N.Y.S.2d 827
• Parties: Anjili KAKWANI, Petitioner v. Nisha KAKWANI, Respondent.
• Court: New York District Court

40 Misc.3d 627

967 N.Y.S.2d 827

2013 N.Y. Slip Op. 23200

Anjili KAKWANI, Petitioner

v.Nisha KAKWANI, Respondent.

District Court, Nassau County, New York.

June 20, 2013.

Rappaport, Hertz, Cherson & Rosenthal, PC, Attorney for Petitioner.

Nassau/Suffolk Law Services, Attorney for Respondent.

ERIC BJORNEBY, J.

DECISION AFTER TRIAL

Petitioner brings this proceeding pursuant to RPAPL § 713 (7) to evict the respondent on the ground that she is a licensee whose license to reside at the premises, which is the respondent's marital residence, has been revoked. Respondent's defense is that she is a “family member” who can not be evicted in a summary proceeding.

THE FACTS

The petitioner, her brother Amit Kakwani, and their parents, moved into the one family residence known as 355 Glen Cove Avenue in Carle Place, New York in 2004. Petitioner's mother, as trustee of a family trust, conveyed the home to the petitioner on December 8, 2006. There is no evidence as to what motivated this transfer and the only consideration recited in the deed is “Ten & other good and valuable consideration, lawful money of the United States, paid by the party of the second part...” In March 2008 Amit Kakwani traveled to India where, for the first time, he met his arranged bride-to-be, the respondent Nisha Kakwani. In September 2008 the petitioner and her brother, Amit, traveled to India where petitioner met the respondent for the first time. On or about November 29, 2008 the respondent moved by herself to the United States and into the Kakwani family home. On December 22, 2008 respondent and Amit Kakwani were married. They resided in the master bedroom of the family home, as husband and wife, until sometime in 2012 or early 2013 when Amit Kakwani moved out of the master bedroom and into another room in the house. He has not been named as a respondent in this proceeding and rent has never been sought or paid by him or the respondent.

On September 20, 2012 petitioner had respondent served with a 10–Day Notice to Quit and on January 17, 2013 petitioner had respondent served with the instant Notice of Petition and Petition seeking to evict the respondent alone pursuant to RPAPL § 713(7) on the grounds that she is a mere licensee whose license to occupy the premises has been revoked. The respondent alleges she is a family member not subject to eviction in a summary proceeding brought pursuant to RPAPL § 713(7). In Family Court on February 15, 2013 petitioner obtained a (refrain) order of protection against the respondent and the respondent obtained a similar order of protection against her husband, Amit Kakwani, the petitioner's brother. The matter was tried before this court on April 2, 2013 and the above facts established. On April 30, 2013 briefs were submitted and the case is now ready for decision.

THE LAW

RPAPL § 713 entitled “Grounds where no landlord-tenant relationship exists” provides in relevant part as follows:

A special proceeding may be maintained under this article after a ten-day notice to quit has been served upon the respondent in the manner prescribed in section 735, upon the following grounds:

7. 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......

The question presented in this matter is whether or not a person whose right to reside in what has been her marital residence for four years, and whose right to do so stems not merely from petitioner's permission, but from a true family relationship, can be summarily evicted as a mere licensee without the bringing of an ejectment action in Supreme Court. The Court concludes that this question must be answered in the negative.

The seminal case on whether or not a family member can be evicted as a mere licensee, decided fifty years ago, is Rosenstiel v. Rosenstiel, 20 A.D.2d 71, 245 N.Y.S.2d 395. In that case, a husband sought to evict his wife from what had been the marital residence, but which was owned in his name alone. In discussing the legislative intent behind RPAPL § 713(7), the Court noted that although the Law Revision Commission report upon which the legislation was based listed numerous categories of persons who could be summarily evicted in the absence of a landlord tenant relationship, including a spouse who remained upon the premises after separation or divorce, the legislature at that time adopted only two categories, a licensee who held over after revocation of the license and a lessee of a life tenant who died before the expiration of the lease term. The Court further noted that the Supreme Court and the Family Court were specifically empowered to deal with issues surrounding property and the break-up of a family, and went on to hold that a spouse's right to occupy the family residence stems not from her husband's permission, but from the very family relationship itself, and that she therefore could not be evicted as a mere licensee.

It must be noted that the statute itself contains no definition of a licensee. The Rosenstiel court, in observing that there is nothing in the statute to specifically exclude a spouse from the licensee category, stated:

But it is to be assumed that the Legislature, in the use of the particular term, intended that it have the meaning generally ascribed thereto in the law. (See McKinney's Cons. Laws of N.Y., Book 1, Statutes, § 232.) 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. (See Mumford v. Whitney, 15 Wend. 380, 393;Greenwood Lake & Port Jervis R.R. Co. v. New York & Greenwood Lake & R.R. Co., 134 N.Y. 435, 440, 31 N.E. 874;Trustees of Southampton v. Jessup, 162 N.Y. 122, 126, 56 N.E. 538;Clifford v. O'Neill, 12 App. Div. 17, 20, 42 N.Y.S. 607;Caldwell v. Mitchell, 158 N.Y.S.2d 868, 870 [Johnson, J.]; Clark, Covenants and Interests Running With Land [2d ed.], ch. II, pp. 13–64, and cases cited; Walsh, Law of Real Property [2d ed.], § 150; Tiffany, Real Property [3d ed.], §§ 829, 833.) This, as is fully apparent from the Law Revision Commission study and recommendation, is the sense in which the term was used in the statute.

Black's Law Dictionary defines a licensee as “[o]ne who has the owner's permission or passive consent to enter the owner's premises for one's own convenience, curiosity, or entertainment.” It can not be disputed that a true family relationship, which includes a shared home, involves a far deeper and more permanent commitment than one based upon mere “convenience, curiosity, or convenience.”

A year after Rosenstiel, the Westchester County Court decided Matter of Brennecke v. Smith, 42 Misc.2d 935, 249 N.Y.S.2d 602. In that case, respondent purchased what became the marital residence. At some point he deeded the home to his wife and they continued to reside there together with their four children. Thereafter, the wife left the marital residence and, as a result of financial difficulties, she in turn deeded the home to a friend, the petitioner herein, who brought this summary proceeding to evict the respondent as a licensee. The Court held that respondent could not be reduced to the status of a licensee simply because the respondent's wife vacated the marital residence, and denied the petition even though the respondent was not actually a member of the petitioner's family.

In 1987, what has come to be known as the “family exception” as to who may be deemed a licensee for summary eviction purposes was expanded in Minors v. Tyler, 137 Misc.2d 505, 521 N.Y.S.2d 380. In that case, the petitioner was the titled owner of a one-family home in which he lived with the respondent as husband and wife for a number of years, though the parties never legally married. Eventually, petitioner sought to have the respondent evicted as a licensee. Citing Rosenstiel and other cases, the Court denied the petitioner's motion for summary judgment holding that the respondent under these circumstances was not a licensee.

In Nagle v. DiPaola, 134 Misc.2d 753, 512 N.Y.S.2d 761, the Court was asked to consider whether petitioner, who owned what became the family home prior to his marriage to the respondents' mother, who in turn had custody of her two children, aged 15 and 17 from a prior marriage, could summarily evict his step children as licensees whose license he claimed to have revoked. The Court held that the step children were not licensees because there right to reside in the home flowed not from the petitioner's permission but from their relationship to their mother who was married to the petitioner.

In 1989 the Court of Appeals decided Braschi v. Stahl Assoc. Co., 74 N.Y.2d 201, 544 N.Y.S.2d 784, 543 N.E.2d 49. In construing the meaning of the statutory term “family” for purposes of determining succession rights to a rent-controlled apartment the court stated:

The intended protection against sudden eviction should not rest on fictitious legal distinctions or genetic history, but instead should find its foundation in the reality of family life. In the context of eviction, a more realistic, and certainly equally valid, view of a family includes two adult lifetime partners whose relationship is long term and characterized by an emotional and financial commitment and interdependence. This view comports both with our society's traditional concept of “family” and with the expectations of individuals who live in such nuclear units ( see also, 829 Seventh Ave. Co. v. Reider, 67 N.Y.2d 930, 931–932, 502 N.Y.S.2d 715, 493 N.E.2d 939 [interpreting 9 NYCRR 2204.6(d)'s additional “living with” requirement to mean living with the named tenant “in a family unit, which in turn connotes an...