Rosenstiel v. Rosenstiel

• Decision Date: 12 December 1963
• Parties: Lewis S. ROSENSTIEL, Plaintiff, v. Susan L. ROSENSTIEL, Defendant. Annulment Action. Susan L. ROSENSTIEL, Plaintiff, v. Lewis S. ROSENSTIEL, Defendant. Injunction Action. Lewis S. ROSENSTIEL, Connecticut, Owner-Respondent, v. Susan L. ROSENSTIEL, New York, Licensee-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 395

245 N.Y.S.2d 395

20 A.D.2d 71

Lewis S. ROSENSTIEL, Plaintiff, v. Susan L. ROSENSTIEL, Defendant. Annulment Action.

Susan L. ROSENSTIEL, Plaintiff, v. Lewis S. ROSENSTIEL, Defendant. Injunction Action.

Lewis S. ROSENSTIEL, Connecticut, Owner-Respondent, v Susan L. ROSENSTIEL, New York, Licensee-Appellant.

Supreme Court, Appellate Division, First Department.

Dec. 12, 1963.

Walter S. Beck, New York City, of counsel (Louis Nizer, Walter S. Beck and Simon Rose, New York City, on the brief, Phillips, Nizer, Benjamin, Krim & Ballon, New York City, attys.), for appellant.

Roy M. Cohn, New York City, of counsel (Joel S. Stern and John A. Vassallo, New York City, with him on the brief, Saxe, Bacon & O'Shea, New York City, attys.), for respondent.

Before BOTEIN, P. J., and BREITEL, RABIN, EAGER and STEUER, JJ.

EAGER, Justice.

A summary proceeding, instituted by service of a copy of a precept and petition, was brought by the petitioner (plaintiff here in the consolidated action) in the Civil Court of the City of New York to remove his wife from the residence premises owned by him and formerly occupied by the parties as their marital home. The petition alleged that the plaintiff was the owner and in possession of the premises; that the plaintiff and respondent (defendant here) entered into a purported marriage; that the defendant entered into possession of the premises with the permission of the plaintiff; that the defendant has continuously refused and prevented the plaintiff, as owner, to have access to and possession of the said premises; that the plaintiff caused to be served upon defendant, as a licensee, a notice revoking her alleged license to occupy the premises and requiring her to quit and remove from said premises on a date ten days after service of the notice; and that the defendant holds over and continues in possession of said premises without permission of the plaintiff although the said notice to quit and remove had been served upon her according to law.

The defendant, by virtue of her denials and an affirmative defense, in her answer, alleged that she is the wife of the plaintiff; that the subject premises were occupied as their marital home; that in October, 1961, the plaintiff voluntarily abandoned the defendant, stating that he would never again return to that home; and that the statute does not authorize the maintenance of a summary proceeding brought for the purpose of dispossessing a wife from the marital home.

By an order of Special Term, the summary proceeding was removed from the Civil Court and consolidated with an action brought by plaintiff in the Supreme Court for an annulment of the marriage. Thereafter, the plaintiff moved in the consolidated action to strike the answer of the defendant to the petition as sham and frivolous; for dismissal of the affirmative defenses; and for summary judgment to the plaintiff, pursuant to Rules 113 and 114 of the Rules of Civil Practice, for the relief demanded in the precept and petition. The position of the plaintiff was that subdivision 8 of section 1411 of article 83 of the Civil Practice Act (now Real Property Actions and Proceedings Law, § 713, subd. 7) expressly authorized the maintenance of this proceeding against the defendant as a 'licensee' whose license 'has been revoked'.

In opposition to this motion for summary judgment, the defendant submits an affidavit that she and the plaintiff were married in the City of New York on November 30, 1956; that they thereafter resided in the subject premises; that in October, 1961, while they were still living there, the plaintiff, her husband, without just cause, left the house, announcing that he would never return. For the purposes of the disposition of this motion to strike the answer, to strike the defenses, and for summary judgment, these allegations of the defendant must be accepted as true. If there are bona fide issues with respect to the truth of any of the same, the motion must be denied and the matter remanded for trial.

Special Term, relying principally on our decision in Tausik v. 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, held that the summary proceeding was authorized by the statute and that it was immaterial whether the defendant wife 'is validly married to the plaintiff-owner, whether the subject premises constituted their marital home during their cohabitation, [and] whether plaintiff rightfully or wrongfully abandoned defendant' (39 Misc.2d 1044, 1046, 242 N.Y.S.2d 568, 570).

Tausik v. Tausik (supra), is not however controlling here. There, the husband and wife had voluntarily separated and a written agreement signed by the wife was held to constitute 'a license to use the husband's property' (a cooperative apartment, the proprietary lease of which was in his sole name); and we stated that '[a]ll that is decided here is that a valid agreement of license was made; and the license having expired, the husband may avail himself of the statutory remedy given by section 1411 subd. 8 of the Civil Practice Act, instead of suing in an action of ejectment.' (Tausik v. Tausik, supra, 11 A.D.2d at 145, 202 N.Y.S.2d at 83).

Here, as distinguished from the facts in Tausik v. Tausik (supra), the defendant wife, in her occupancy of the marital home, had not signed an agreement with reference to her use thereof. Lawfully in possession to begin with, as the wife of the plaintiff, she continued in possession, following alleged abandonment by her husband, not by virtue of any license or special arrangement with her husband, but solely on the basis of the existence of their marriage relationship.

The question here is simply whether or not subdivision 8 (now subdivision 7 of section 713, Real Property Actions and Proceedings Law) may be applied to authorize the maintenance of summary proceedings to evict a wife whose rights as such have not been annulled or modified by any court decree or special agreement. Certainly, in view of the general legislative history and policy in the area of domestic relations, it would require a clear manifestation of legislative intent to render the statute so applicable. Statutory enactments purporting to cover certain rights and obligations of a husband and wife, one to the other, and the civil remedies available with respect thereto have been codified in the Domestic Relations Law, the CPLR and the Family Court Act, and thereby the general jurisdiction and responsibility in this field have been committed to the Supreme Court and the Family Court which are properly fitted and equipped to handle the myriad of problems which may arise out of a family relationship. The use and possession of the family home is so essentially a part of the jurisdiction and responsibility of such courts in family matters that, had the legislature intended to confer upon other courts jurisdiction over such use and possession, it is clear that it would have made its intent in this regard plainly known. The construction of the statute to apply to authorize summary proceedings by a husband against his wife would confer jurisdiction upon the Civil Court of the City of New York and upon city courts, justices' courts and district courts throughout the State to remove one's family from the family residence. (See Real Property Actions and Proceedings Law, Section 701.) In fact, if the husband were so enabled to secure the physical removal of his wife and family from the marital home by means of a summary proceeding prosecuted by him, he could thereby in effect obtain in such courts of limited jurisdiction a separation from his wife without in any way submitting to the jurisdiction of the tribunals having general cognizance of family affairs. (See Marshall v. Marshall, 116 Misc. 249, 251, 190 N.Y.S. 318, 319; Cipperly v. Cipperly, 104 Misc. 434, 436, 172 N.Y.S. 351, 352; dissenting opinion, McNally, J., Tausik v. Tausik supra, 11 A.D.2d p. 146, 202 N.Y.S.2d pp. 84-85.) It is inconceivable that the legislature would enact a law having this effect.

In any event, the legislative history underlying the adoption of subdivision 8, does clearly indicate that this particular enactment was not intended to apply under the circumstances here. Said subdivision was added by Chapter 273 of the Laws of 1951. It was enacted on the recommendation of the Law Revision Commission following a study and report by Professor Ralph D. Semerad of the Albany Law School (1951 Law Revision Commission Report, p. 55). The study noted that the statute as it then existed (sections 1410, 1411 of the Civil Practice Act) did not authorize summary relief in many cases where a landlord-tenant relationship did not exist and where, following an original entry upon premises which was lawful, the occupant later, on remaining in possession, became a trespasser. (Id., p. 61.) It was pointed out in the study that there 'are many cases in which trespassers had been held not to be subject to summary process under article 83, either because the entry was not unlawful or because none of the special statutory relationships existed between the party in possession and the party seeking to recover possession.' (idem, p. 61). The study then stated that 'Most of these cases tend to conform to a few patterns', namely, seven, which were reviewed, being designated as follows (idem, p. 61):

'(a) Licensee Holding Possession after License Revoked;

'(b) Lessee for Years of Life Tenant Who Dies Before End of Sub-Term;

'(c) Defaulting Vendee in Possession;

'(d) Spouse of Family Holding Over after Death of Tenant or Owner;

'(e) Spouse Remaining on Premises after Separation or Divorce;

'(f) Tenant Holding Under Sublease Given in Violation of Statute or Covenant in Original Lease;

'(g) Lessee Removing Tenant Holding Over Under Prior Expired Lease.'

Upon basis of the said study and report of Professor Semerad, it is important to note that the Law Revision Commission, recommending the...