Rosenstiel v. Rosenstiel

• Decision Date: 03 July 1963
• Citation: 242 N.Y.S.2d 568,39 Misc.2d 1044
• Parties: Lewis S. ROSENSTIEL, Plaintiff, v. Susan L. ROSENSTIEL, Defendant. Susan L. ROSENSTIEL, Plaintiff, v. Lewis S. ROSENSTIEL, Defendant. Lewis S. ROSENSTIEL, Owner, v. Susan L. ROSENSTIEL, Licensee.
• Court: New York Supreme Court

Page 568

242 N.Y.S.2d 568

39 Misc.2d 1044

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

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

Lewis S. ROSENSTIEL, Owner, v. Susan L. ROSENSTIEL, Licensee.

Supreme Court, Special Term, New York County, Part XII.

July 3, 1963.

Saxe, Bacon & O'Shea, New York City, for plaintiff.

Phillips, Nizer, Benjamin, Krim & Ballon, New York City, for defendant (Louis Nizer, Simon Rose, Herbert N. Bobrow, New York City, Roy M. Cohn, Daniel J. Driscoll, Joel S. Stern, John A. Vassallo, New York City, of counsel).

BIRDIE AMSTERDAM, Justice.

Plaintiff, the husband of defendant in the instant consolidated actions, moves for summary judgment, in the summary proceeding herein, evicting defendant from plaintiff's house at No. 5 East 80th Street, Manhattan, New York City, and for dismissal of defendant's affirmative defenses pursuant to rule 109, subdivision 6 of the Rules of Civil Practice.

The summary proceeding was heretofore removed from the Civil Court and consolidated with the action by plaintiff for an annulment and the action by his wife against him for an injunction. On the instant motion, which pertains solely to the summary proceeding, plaintiff moves pursuant to section 1411, subdivision 8 of the Civil Practice Act. He contends he is the owner of the subject premises and that, after the parties had separated in October 1961, he had, on April 8, 1963, served formal notice on defendant terminating her license to continue in possession of the premises; that since that date she has continuously used and prevented plaintiff, who is the owner of the premises, access thereto and possession thereof.

Defendant does not deny plaintiff's ownership and admits receipt of the notice of termination. However, she denies wrongful holdover. She alleges that she was married to the plaintiff in 1956, that the house was the 'marital home' of the parties until October of 1961 when plaintiff 'unjustifiably abandoned her'. She asserts she did not enter into the premises by the 'permission' of plaintiff but contends plaintiff gave her entrance thereto as his wife 'which under settled legal principles, [plaintiff] was obligated to' do. Defendant further asserts two affirmative defenses, namely, (1) that plaintiff cannot remove her from the premises because it constitutes 'their marital home', and (2) that the relief sought in the instant proceeding is sub judice in the annulment action, pending between the parties in this court, because reference was made in a motion therein on the issue 'as to whether use of these premises or of the personalty (therein) is essential to the conduct of plaintiff's (petitioner's) business'.

Prior to 1951 the courts consistently held that a spouse owning real property had an absolute right to recover its possession from the other spouse (Wood v. Wood, 83 N.Y. 575). This right was reaffirmed in the case of Goodwin v. Goodwin (172 Misc. 118, 13 N.Y.S.2d 894). However, prior to 1951 a person could not be evicted by summary proceedings where that person had obtained possession of realty rightfully (Williams v. Alt, 226 N.Y. 283, 123 N.E. 499). Thus, in Brooks v. Brooks (146 Misc. 335, 261 N.Y.S. 211) it was held that a husband could not evict a wife by summary proceedings since her entry onto the premises had been lawful. She was not an intruder or a squatter within the purview of section 1411, subdivision 4 of the Civil Practice Act. The courts held that the proper remedy to recover real property from a spouse was an action in ejectment (Wright v. Wright, 188 Misc. 268, 67 N.Y.S.2d 63).

Subdivision 8, of section 1411 was enacted in 1951. It appears from a study thereof that it was intended by the Legislature to afford a spouse, with legal right to possession of realty, the simple and speedy relief of summary proceedings, where the husband and wife have in fact separated. The reasons for the enactment of subdivision 8 have been succinctly set forth in the case of Tausik v. Tausik, 21 Misc.2d 599, 200 N.Y.S.2d 543 (App.Term, 1st Dept., 1960), affd. 11 A.D.2d 144, 202 N.Y.S.2d 82, affd. w/o opin. 9 N.Y.2d 664, 212 N.Y.S.2d 76, 173 N.E.2d 51. The Appellate Term stated that the refusal of our courts to entertain summary proceedings against a refractory spouse,...