O'Neill v. O'Neill

• Citation: 2016 NY Slip Op 50271 (U)
• Decision Date: 24 February 2016
• Docket Number: 74120/2015
• Parties: Audrey O'Neill, Petitioner, v. Michael O'Neill, John Doe and Jane Doe, Respondents.
• Court: New York Civil Court

2016 NY Slip Op 50271(U)

Audrey O'Neill, Petitioner,
v.
Michael O'Neill, John Doe and Jane Doe, Respondents.

74120/2015

Civil Court of the City of New York, Queens County

Decided on February 24, 2016

Attorneys for petitioner:

Rappaport, Hertz, Cherson & Rosenthal

Attorney for respondent:

Legal Services Plan, Local 237 Welfare Fund

Jose Rodriguez, J.

Recitation, as required by CPLR section 2219(a), of the papers considered in the review of this motion to dismiss.

Papers Numbered

Notice of Motion...1

Affirmation in Opposition...2

Petitioner Audrey O'Neill is the owner of the subject premises located at 103-02 106th Street, Ozone Park, New York. The subject premises are not a multiple dwelling and not subject to rent regulation.The instant summary holdover proceeding was commenced in September 2015 by John O'Neill, petitioner's son, via power of attorney bestowed upon him by petitioner on December 2, 2013. Respondent is also petitioner's son. The petition alleges that respondent is in possession of the subject premises pursuant to an oral rental agreement. The petition further states that the term for which said premises were occupied by respondent expired on October 31, 2015. Respondent was served a Notice of Termination dated July 10, 2015 purporting to terminate the tenancy effective August 31, 2015.

Petitioner is 91 years old and no longer resides in the state of New York due to health issues. She has resided in California with her son John O'Neill since November 2013. Prior to relocating in California petitioner resided in the subject premises with her adult son Michael O'Neill, the respondent herein.

This proceeding first appeared on the court calendar on September 29, 2015. Respondent failed to appear and the matter was adjourned to October 27, 2015 for inquest. On October 27, 2015, Respondent's daughter, Fallon O'Neill, appeared alleging Respondent was in the hospital. The matter was adjourned. On December 22, 2015, Respondent appeared through counsel and the matter was again adjourned to February 9, 2016 for trial. On February 2, 2016, respondent filed the instant motion. All parties are represented by counsel.

Respondent moves this court seeking an order dismissing the proceeding or in the alternative appointing a Guardian Ad Litem (GAL) for respondent. Respondent argues that occupancy of the subject premises arose out of the parties' family relationship and that a landlord tenant relationship does not exist between the parties. In addition, respondent alleges that the predicate notice is insufficient because it is signed by petitioner's agent and is not accompanied by proof of the agent's authority. Furthermore, respondent argues that the predicate notice and petition indicate different dates of termination making the petition ambiguous as to whether the tenancy had been terminated prior to the commencement of this proceeding.In the alternative, Respondent moves this court to appoint a GAL for both Petitioner and Respondent. Petitioner opposes this motion, arguing that even though Petitioner and Respondent are blood relatives their relationship was that of landlord and tenant. Furthermore, Petitioner argues that neither party needs a GAL, citing a lack of an Adult Protective Services (APS) motion and documentation of any physical and/or mental health issues.

In an affidavit in support of the instant motion, Respondent's daughter,...