Sirota v. Sirota
| Decision Date | 06 April 1995 |
| Citation | 626 N.Y.S.2d 672,164 Misc.2d 966 |
| Court | New York City Court |
| Parties | Louis SIROTA, Petitioner, v. Jonathan SIROTA & Jacqueline Sirota, Respondents. |
Schaffer & Zapson, New York City, for petitioner.
Genovesi, Berman & Genovesi, Brooklyn, for respondents.
This is a summary proceeding instituted by service upon the respondent of a Thirty (30) Day Termination Notice with the object of ousting petitioner's two (2) adult children from the premises. The respondents, in their answer, deny the existence of any lease, oral or written, and allege, inter alia, an affirmative defense of fraud and a counterclaim for damages in the sum of one hundred thousand dollars.
It appears from the facts that respondents Jonathan and Jacqueline Sirota are the son and daughter of the petitioner; they have resided in the premises for twenty-seven (27) and thirty-one (31) years, respectively. The petitioner, as is often the case when marital disharmony befalls the family, moved out of the home; there he left his wife and these respondents, who remained in the home with their mother until her death. A divorce action which was pending when the petitioner's wife died, had not been resolved.
The respondents now move for dismissal of this proceeding asserting that, as family members of the petitioner, they are invulnerable to eviction by summary proceeding. Petitioner cross moves for an order striking the affirmative defenses. For the purpose of disposition of the motion to strike the defenses and counterclaims, the allegations of the respondents must be accepted as true. Grimm v. City of Buffalo, 8 A.D.2d 689, 184 N.Y.S.2d 868; 109 Beach 29th Street Corp. v. Archer, 188 Misc. 769, 67 N.Y.S.2d 916.
This Court's research has not uncovered any authority directly confronting the issue at hand. However, the eviction by summary proceeding of another member of the nuclear family--the wife--has long been settled. Rosenstiel v. Rosenstiel, 20 A.D.2d 71, 245 N.Y.S.2d 395 (App.Div. 1st Dept.).
In Rosenstiel, the Court held that summary proceeding was not authorized to oust the wife from possession. The Court reasoned that "lawfully in possession to begin with as the wife of the [petitioner] she continued in possession.... not by virtue of any license or special arrangement ... but solely on the basis of the existence of their marital relationship." (Supra, at 73, 245 N.Y.S.2d 395.)
Clearly, one critical factor in Rosenstiel was the use of the premises as the matrimonial domicile.
"The occupation of the marital home by the wife" said the Court, Id., at 76-77, 245 N.Y.S.2d 395.
...
To continue reading
Request your trial
-
Kakwani v. Kakwani
...whatever its duration, bearing some indicia of permanence or continuity” (emphasis supplied) ] ). In 1995, the case of Sirota v. Sirota, 164 Misc.2d 966, 626 N.Y.S.2d 672 was decided. In that case the adult respondents, aged 27 and 31 years, lived in the marital home with their mother and c......
-
O'Neill v. O'Neill
...Di Paola, 134 Misc.2d 753 [1987] ), a same-sex couple (Braschi v. Stahl Assoc. Co., 74 N.Y.2d 201 [1989] ), adult children (Sirota v. Sirota, 164 Misc.2d 966 [1995] ), and a sister-in-law (Kakwani v. Kakwani, 40 Misc.3d 627, 967 N.Y.S.2d 827 [2013] ).If a person is not a family member but a......
-
Piotrowski v. Little
...v. Williams, 13 Misc.3d 395, 822 N.Y.S.2d 415 (Civ. Ct., N.Y. Co., 2006)(adult grandchildren not subject to eviction); Sirota v. Sirota, 164 Misc.2d 966, 626 N.Y.S.2d 672 (Civ. Ct., Kings Co., 1995)(adult children not subject to eviction), mod on other grounds, 168 Misc.2d 123, 644 N.Y.S.2d......
-
M.M. v. D.M.
...Misc 2d 753 [Nassau Dist Ct 1987]), adult lifetime partners (Braschi v Stahl Assoc. Co., 74 NY2d 201, [1989]), adult children (Sirota v Sirota, 164 Misc 2d 966 [Civ Ct, Kings County 1995]), an ex-girlfriend and minor children of the relationship (DeJesus v Rodriguez, 196 Misc 2d 881 [Civ Ct......