Lally v. Fasano

• Decision Date: 23 February 2009
• Docket Number: No. SP 06202/08,SP 06202/08
• Citation: 23 Misc.3d 938,2009 NY Slip Op 29081,875 N.Y.S.2d 750
• Parties: LAWRENCE M. LALLY, Petitioner, v. DAWN FASANO, Also Known as DAWN FASANO LALLY, Respondent.
• Court: New York District Court

23 Misc.3d 938

875 N.Y.S.2d 750

2009 NY Slip Op 29081

LAWRENCE M. LALLY, Petitioner, v. DAWN FASANO, Also Known as DAWN FASANO LALLY, Respondent.

No. SP 06202/08

District Court of Nassau County, First District.

Decided February 23, 2009.

Capell Vishnick, LLP, Lake Success (Avrohom Gefen of counsel), for respondent.

Lawrence M. Lally, Locust Valley, petitioner pro se.

OPINION OF THE COURT

SCOTT FAIRGRIEVE, J.

By motion dated January 5, 2009, respondent Dawn Fasano, also known as Dawn Fasano Lally, seeks to dismiss the instant proceeding, alleging that she is not a licensee and therefore cannot be evicted in a summary proceeding. Petitioner Lawrence M. Lally opposes the motion and, pursuant to CPLR 3212 (b), requests summary judgment and a judgment of possession.

According to the affidavits of the parties, respondent, a 42 year-old attorney, is petitioner's daughter-in-law and was married to petitioner's son in 2001. Soon thereafter, the couple moved into the subject premises located at 345 Harbor Drive, Oyster Bay, New York. The premises are described as a "beach cottage" located on a parcel of land solely owned by petitioner, whose own residence is on the same parcel of land. Respondent and her husband resided together at the subject premises with the permission of petitioner until March 2007, when respondent's husband moved out. Respondent's husband then filed a divorce proceeding, which is currently pending in Suffolk County Supreme Court. Petitioner has served respondent with a 10-day notice to quit pursuant to RPAPL 713 and commenced the instant summary proceeding to evict the respondent from the subject premises, contending that respondent is a licensee.

Pursuant to RPAPL 713 (7), "[a] special proceeding may be maintained" where respondent "is a licensee of the person entitled to possession of the property at the time of the license, and . . . his license has been revoked by the licensor." Petitioner contends that respondent daughter-in-law was a licensee and that her permission to reside at the subject premises was revoked when he served the 10-day notice to quit. Respondent, however, claims she is entitled to possession because, as a family member of the property owner by virtue of her marriage to petitioner's son, she is not a licensee.

There is case law to suggest that "occupancy due to familial relationship does not constitute a licensee agreement as contemplated by RPAPL § 713 (7)" (Griffith v Reid, NYLJ, Dec. 11, 2008, at 27, cols 1, 2 [Civ Ct, Kings County]). Respondent attempts to construe this language to mean that any kind of familial relationship does not constitute a licensee agreement. Although the courts have recognized "various forms of family relationships ranging from spousal, parent and child, and even nonmarried couples," (Williams v Williams, 13 Misc 3d 395, 399 [Civ Ct, NY County 2006]), the courts have never made a blanket assertion that all family members will be exempt from licensee status. Courts must evaluate each individual familial relationship on a case-by-case basis to determine whether a licensor-licensee relationship exists. An extensive review of the case law reveals that the application of licensee status to this specific family relationship, in which a father-in-law attempts to treat his daughter-in-law as a licensee, is a case of first impression in New York.

It is well settled that a spouse does not qualify as a licensee (Rosenstiel v Rosenstiel, 20 AD2d 71 [1st Dept 1963]). In Rosenstiel, the petitioner husband and respondent wife lived together in the matrimonial domicile until the petitioner moved out due to marital problems. While a divorce action was pending, the respondent remained in possession and petitioner attempted to evict her as a licensee. The Appellate Division held that the respondent wife did not qualify as a licensee and therefore could not be evicted in a summary proceeding. The holding was based upon the premise that respondent wife's possession of the subject premises was not by virtue of her husband's "permission," but rather "because of special rights incidental to the marriage contract and relationship" (id. at 76). So long as the marriage relationship remains intact, a spouse has "the obligation by virtue thereof to support and maintain" his or her spouse (id. at 77).

Relying on the holding in Rosenstiel, a number of other familial relationships have been deemed impervious to eviction by summary proceeding (see Griffith, NYLJ, Dec. 11, 2008, at 27, col 1 [a boyfriend could not evict his former girlfriend, who was the mother of his child, in a summary proceeding based on the premise that the girlfriend was a mere licensee]; Williams, 13 Misc 3d 395 [2006] [a grandmother could not evict her grandchildren in a summary proceeding on the basis that they were licensees]; Sirota v Sirota, 164 Misc 2d 966 [Civ Ct, Kings County 1995] [a father could not evict his adult children as licensees]; Minors v Tyler, 137 Misc 2d 505 [Civ Ct, Bronx County 1987] [a boyfriend could not evict his former girlfriend as a licensee]; Nagle v Di Paola, 134 Misc 2d 753 [Nassau Dist Ct 1987] [a stepfather could not evict his teenage stepchildren as licensees]).

However, courts have not been in agreement on how to handle the treatment of these various familial relationships (see Minors, 137 Misc 2d 505 [1987] [a live-in girlfriend was not a licensee]; cf. Valentino v Reyes, NYLJ, Mar. 16, 2006 at 18, col 3 [Civ Ct, Bronx County] [a live-in girlfriend was a licensee, distinguishing itself from Minors because possession was not based on constructive trust]; see also Griffith, NYLJ, Dec. 11, 2008, at 27, col 1 [a boyfriend could not evict his former girlfriend, who was the mother of his child, as a licensee]; cf. Blake v Stradford, 188 Misc 2d 347 [Nassau Dist Ct 2001] [a boyfriend could evict his former girlfriend, who was the mother of his children, as a licensee]).

Despite the varying familial relationships in the above-referenced matters, each and every case wherein no licensee relationship was found was decided on the same reasoning. The primary basis for finding that a family member was exempt from licensee status was that the family member lived together with the property owner in the matrimonial domicile. In interpreting the definition of a "family," courts have traditionally considered whether the parties lived together "in a family unit" with "some indicia of permanence or continuity" (Braschi v Stahl Assoc. Co., 74 NY2d 201, 211 [1989] [emphasis omitted]). Whether the parties resided together has often been the "critical factor" in determining whether they are to be considered a "family" for legal purposes (see Sirota, 164 Misc 2d at 967). Another consideration in the majority of the above-cited cases was whether there was a duty of the property owner to support the...