In this summary licensee holdover proceeding brought under RPAPL 713 (7), petitioner Christopher Landry, Jr., seeks to evict respondents Taquana Harris, his former girlfriend; Azlan Sakima Landry, their three-year-old son; and Alsatia Ragusa, Harris's daughter from a different relationship; and. Landry references Alsatia as Jane Doe and Azlan as John Doe. Harris, Alsatia, and Azlan live in a valuable three-bedroom cooperative apartment in Chelsea. Landry is the sole proprietary lessee and shareholder.

Landry and Harris's relationship has turned sour. Pending in Criminal Court, New York County, is a prosecution against Landry for the class "A" misdemeanor of Aggravated Harassment (Penal Law § 240.30) allegedly committed against Harris. Criminal Court in that action has issued a temporary order of protection against Landry in Harris and Azlan's favor. Also pending are custody, visitation, and support proceedings in Family Court, New York County. Family Court has awarded temporary custody of Azlan to Harris.

Respondents now move to dismiss the petition or, in the alternative, to stay this proceeding pending Family Court's final determinations.

Harris's motion to dismiss arises under CPLR 3211 (a) (2) & (7). She argues that Landry may not bring a licensee proceeding against Harris. According to Harris, she is not a licensee whose license Landry may revoke. The court denies the motion. Civil Court has subject-matter jurisdiction over this proceeding, and Landry has stated a cause of action. In [*2]making that determination, this court does not suggest that petitioner can or will prevail at trial, but merely that a trial is required.

The case law is divided on whether someone may prevail in a licensee proceeding against a former paramour.

Forbidding in many circumstances a licensee proceeding against a former paramour are DeJesus v Rodriguez, 196 Misc 2d 881 (Hous Part, Civ Ct, Richmond County 2003); Sestayo v Santiago, NYLJ, May 18, 1996, at 25, col 1 (Hous Part, Civ Ct, Kings County); and Minors v Tyler, 137 Misc 2d 505 (Hous Part, Civ Ct, Bronx County 1987).

Allowing in many circumstances a licensee proceeding against a former paramour are Valentino v Reyes, NYLJ, Mar 16, 2006, at 18, col 3 (Hous Part, Civ Ct, Bronx County); Eckles v Sealy, NYLJ, Apr. 17, 2002, at 27, col 6 (Hous Part, Civ Ct, Kings County); and Blake v Stradford, 188 Misc 2d 347 (Dist Ct, Nassau County 2001).

Part of the division focuses on facts that arise here and whose inferences and weight the parties dispute: whether the parties moved into the subject premises together; how long they lived together; whether they held themselves out as husband and wife or as nontraditional family members; whether they have a child in common; whether they shared household expenses; whether the supposed licensee contributed toward the home's purchase price, maintenance, or improvements; and what type of home is at issue—a rent-regulated unit, real property like a house or condominium, or personal property like shares appurtenant to a cooperative unit.

The trial court will find and apply facts and decide which line of authority to follow.

That said, the parties do not dispute a key, determinative fact: that Azlan is their minor son. Landry may not evict his son, because a party may not evict a family member in an RPAPL 713 (7) summary licensee holdover proceeding. (See e.g. Rosenstiel v Rosenstiel, 20 AD2d 71 [1st Dept 1963] [spouse]; Sears v Okin, 2007 NY Slip Op 51510[U] [App Term, 2d Dept, 9th & 10th Jud Dists, July 26, 2007] [minor children]; Sears v Okin, 2004 NY Slip Op 51691[U] [App Term, 2d Dept, 9th & 10th Jud Dists, Dec. 23, 2004] [minor children]; Williams v Williams, 13 Misc 3d 395 [Hous Part, Civ Ct, NY County, 2006] [adult grandchildren]; Sirota v Sirota, 164 Misc 2d 966 [Hous Part, Civ Ct, Kings County 1995] [adult children], modified on other grounds 168 Misc 2d 123 [App Term, 2d Dept, 2d & 11th Jud Dists, 1996].)

Instructive is Blake, cited above as one of the cases favoring petitioner because the Blake court allowed a party to bring a licensee proceeding against a former paramour. In Blake, the court awarded a judgment after trial against the petitioner's former paramour even though, like here, an order of protection existed and even though, also like here, Family Court custody and support proceedings were pending. The Blake court nevertheless dismissed the proceeding as to the petitioner's children. (See 188 Misc 2d at 354-355.) This court does the same: It dismisses, under CPLR 3211 (a) (7), the petition against Azlan, named as John Doe. A parent has the [*3]obligation to support and house a minor child.

This ruling, required by law, has the effect of allowing a trial as to Harris but not as to Azlan, the parties' son. Harris has been awarded temporary custody of Azlan, and Harris lives in the subject apartment with Azlan. The practical problem is that despite the petition's being dismissed against Azlan, he might be evicted because he mother might be evicted. This court must forbid that result. As the Appellate Term noted in Sears in 2004, "should landlord prevail upon the . . . trial, it may well be inappropriate to allow landlord to execute a warrant that will have the effect of evicting his . . . child[]." (Sears, 2004 NY Slip Op 51691[U], at *2.) Putting effect to that statement, the Appellate Tem noted in Sears in 2007 that "an eviction may not occur absent a [Family Court] order that clearly includes an allowance for alternative housing for the parties' minor child[] . . . ." (Sears, 2007 NY Slip Op 51510[U], at *2.)

Respondents' motion to stay this proceeding pending the Family Court proceedings is denied, but without prejudice to renewal. (Cf. Soto v Soto, 4 Misc 3d 881, 886 [Dist Ct, Nassau County 2004] [staying holdover proceeding pending matrimonial action in Supreme Court because of issue about "marital residence with the minor child"].) If Landry prevails at trial against Harris, the execution of the warrant of eviction must be stayed for however long it will take for Family Court to resolve custody and support issues affecting where and with whom Azlan will live. If Landry prevails, this court or the trial court will consider granting a stay whose contours will be conditioned on various equitable factors that will assure that Family Court has the time, opportunity, and wherewithal, consistent with the parties' due-process rights, to direct safe and habitable housing for Azlan.

This proceeding is adjourned to February 20, 2008, at 9:30 a.m. in Part G for referral to Part X for trial.

This opinion is the court's decision and order.

Dated: January 26, 2008

J.H.C.