NY Family Member Can Be Evicted

NY landlord Attorney Robert Friedman explains: When is a sibling considered to be a licensee?

NY Family Member EvictionSister (“petitioner”) commenced a holdover summary proceeding  action  against her brother (“respondent) to evict him from her Queens, NY home, where he resides with his mother. Both the 90-Day notice issued pursuant to Real Property Law (RPL) § 226-c and holdover petition allege that respondent  is a tenant pursuant to a month-to-month rental agreement.

Respondent  made a motion to dismiss for lack of subject matter jurisdiction. He claimed that petitioner could not maintain a summary proceeding against him as a licensee pursuant to NY RPAPL § 713 because he is a family member and because he contributed to the purchase and mortgage payments for the home.

Petitioner’s affidavit in opposition to the motion:

  1. Disputes respondent’s alleged contributions and states that she was the sole purchaser of the property. She annexed the stock certificate of the cooperative apartment, which solely names her as the holder of the shares.
  2. States that respondent only paid her rent, not contributions to the maintenance, for only one year after he moved in.

The Civil Court Of The City Of New York, Queens County in  Persain v Persane explained that the narrow exception to the maintenance of summary proceedings against family members relates to those relationships where there is a “support” obligation, whether to a spouse or to a minor child. The court noted that there is no allegation in the motion to dismiss that any such obligation of ongoing support exists between petitioner and respondent.

The court ruled  that this is not a licensee proceeding. There is no statement that respondent is a licensee or that he has any other status corresponding with a ground set out in RPAPL § 713. Case law holds that there is no per se familial exception to the maintenance of a summary holdover proceeding based on the termination of a tenancy or other rental agreement. To the extent that respondent asserts that he may have some equitable defense based on his alleged financial contributions to the purchase of the property and mortgage payments, the court found no proof of any such contributions annexed to the motion.

The court held that, although there were factual issues of fact to be resolved at trial concerning the respondent ’s alleged monetary contributions, the court  had subject matter jurisdiction of the eviction because the case did not fall within the familial exception.

Contact Buffalo Landlord Attorneys Justin R. Friedman and Robert Friedman at 716-543-3764 for advice on evictionsleasesrent collection and the proper screening of tenants.