[*1]

In this summary license holdover proceeding commenced pursuant to Real Property Actions and Proceedings Law ("RPAPL") § 713(7), petitioners Ann M. Robinson ("Ms. Robinson") and her son Nicholas Robinson ("Mr. Robinson") (collectively Ms. Robinson and Mr. Robinson are "Petitioners"), seek to recover possession of the premises located at 173 Lake Drive, Wyandanch, New York ("the Subject Property"). Petitioners contend that the license of respondent Fatima Holder ("Ms. Holder" or "Respondent"), the mother of Mr. Robinson's toddler son and Ms. Robinson's grandson, Nicholas Robinson II ("Nicholas"), to occupy the Subject Property has been revoked.

Nicholas, age 1 ½ years, is referenced by Petitioners as a "John Doe". Presumably, Ms. [*2]Holder's other minor child who also occupies the Subject Property is referred to as "Jane Doe". The hearing was held on July 21, 2009.

Most of the dispositive issues were undisputed. Petitioners are the owners of the Subject Property (Petitioners' Exhibits 1 and 2). In or about May or June 2007, Respondent moved into the Subject Property with her paramour Mr. Robinson after learning she was pregnant with Nicholas. Mr. Robinson is the biological father of Nicholas. The parties acknowledged that there are no custody or child support matters pending.

From May 2007 through about December 2007, Mr. Robinson and Ms. Holder resided together at the Subject Property. Ms. Robinson, who resides in the property adjoining the Subject Property, was aware that Ms. Holder had moved into the property with her son. From about December 2007 - March 2009, while Mr. Robinson was incarcerated, Ms. Holder continued to reside in the Subject Property without Mr. Robinson. Nicholas was born in February, 2008 (Respondent's Exhibit A) and has lived in the Subject Property with Ms. Holder since birth. Apparently, Mr. Robinson and Ms. Holder at some point had become engaged, but never married, and according to Ms. Holder, the engagement ended in April 2009. Mr. Robinson has since returned to prison and, according to Ms. Robinson, it is anticipated that her son will be released in or about January 2010.

It is undisputed that Ms. Holder has continued to reside in the Subject Property uninterrupted for a period of more than two (2) years. There was no testimony that Ms. Robinson ever resided in the Subject Property. Mr. Robinson is listed as the sole borrower on the mortgage for the Subject Property, and according to the credible documentary evidence, the Subject Property is the subject of a foreclosure proceeding pending in Suffolk County Supreme Court (Petitioners' Exhibit 6). In or about September 2008, Mr. Robinson deeded one-half interest in the Subject Property to Ms. Robinson to assist with the mortgage arrears (Petitioners' Exhibit 2).

Ms. Holder testified that although she has no obligation to pay rent or contribute to the mortgage, during some point of her occupancy while Mr. Robinson was incarcerated, she made a lone mortgage payment because she thought Mr. Robinson was going "to be able to refinance" the loan. Respondent further pays the utilities.

During cross-examination, Ms. Robinson testified that she did not consider Petitioners' relationship with Respondent as being that of a landlord and tenant. Rather, Ms. Holder is the mother of her son's child and her grandchild. Ms. Robinson further testified that Ms. Holder has denied her of having a relationship with Nicholas.

On or about June 8, 2009, Petitioners served Respondent with a 10-day notice to quit pursuant to RPAPL § 713 (Petitioners' Exhibit 4). The instant summary proceeding to evict Respondent from the Subject Property was commenced on or about June 22, 2009. [*3]

Although Mr. Robinson and Ms. Robinson are identified as Petitioners herein, Mr. Robinson, who remains incarcerated and was not called to testify as a witness in this action, neither signed the 10-day Notice to Quit nor the Petition. Instead, Ms. Robinson signed in his stead pursuant to a Power of Attorney granting her authority to handle his property that was executed by Mr. Robinson on or about August 18, 2008 (Petitioners' Exhibit 5). The Court notes that notwithstanding the above, either Petitioner could have commenced the instant proceeding. Although the parties dispute whether Mr. Robinson in fact wishes to evict the mother of his son and his son from the Subject Property, neither party introduced any evidence in admissible form regarding Mr. Robinson's intentions.

Respondent asserts that she is not a licensee but rather she is lawfully in possession due to the familial relationship between she and the owners of the Subject Property, the father and grandmother of Respondent's child, and, as such, she may not be evicted in a summary proceeding. The question before this Court is given the circumstances of this case, whether Petitioners may bring a summary license holdover proceeding under RPAPL § 713(7) against the mother of Mr. Robinson's son and Ms. Robinson's grandchild in addition to the toddler child himself for the purpose of evicting them from the Subject Property. The Court answers that question in the negative.

Section 713(7) of the RPAPL provides, in pertinent part, that a summary proceeding may be brought to recover possession of real property after notice has been made if the respondent "is a licensee of the person entitled to possession of the property at the time of the license, and [a] [the] license has expired, or [b] [the] license has been revoked, or [c] the licensor is no longer entitled to possession of the property" (See RPAPL § 713(7)). It is well-established that a licensee is "one who enters upon or occupies lands by permission, express or implied, of the owner, or under a personal, revocable, nonassignable privilege from the owner, without possessing any interest in the property, and who becomes a trespasser thereon upon revocation of the permission of the privilege" (Rosentiel v. Rosentiel, 20 AD2d 71, 76, 245 NYS2d 395, 400-01 (1st Dep't 1963)).

The issue of family members evicting other family members and former paramours evicting one another has been percolating throughout the State's courts. Oddly, the pertinent statutes provide limited guidance in determining the type of relationship which is the ultimate issue in these proceedings because the type of relationship determines (a) whether a summary proceeding may be commenced and (b) the type of predicate notice required; i.e. 10-day Notice to Quit for licensees or 30-day Notice for tenants-at-will.

If Mr. Robinson and Ms. Holder were married, there would be no dispute because a spouse cannot evict another spouse in a summary proceeding (Rosentiel, supra , 20 AD2d at 76-77, 245 NYS2d at 400-01 (as long as the marriage remains in tact, a spouse has "the obligation by virtue [*4]thereof to support and maintain" his or her spouse). Since Rosentiel, the "familial relationship" has been extended to account for evolving societal lifestyle changes and insulates many parties choosing to live together from holdover license summary proceedings pursuant to RPAPL § 713 (See, e.g., Griffith v. Reid, N.Y.L.J., Dec. 11, 2008, at 25, col. 1 [Civ. Ct. NY County] (boyfriend could not evict former girlfriend, who was the mother of his children); Williams v. Williams, 13 Misc 3d 395, 399, 822 NYS2d 415, 418 [Civ. Ct. NY County 2006] (grandmother could not evict adult grandchildren who had lived in the residence since they were minors); DeJesus v. Rodriguez, 196 Misc 2d 881, 768 NYS2d 126 [Civ. Ct. Richmond County 2003] (boyfriend could not evict girlfriend and mother of his child); Sirota v. Sirota, 164 Misc 2d 966, 626 NYS2d 672 [Civ. Ct. Kings County 1995] (father could not evict his adult children); Nagle v. DiPaola, 134 Misc 2d 753, 512 NYS2d 761 [Nassau County Dist. Ct. 1987] (stepfather could not evict teenage stepchildren)).

Conversely, there have been courts that have permitted a family member or former paramour to be evicted as a licensee (See, e.g., Lally v. Fasano, 23 Misc 3d 938, 875 NYS2d 750 [Nassau County Dist. Ct. 2009] (denying daughter-in-law's motion to dismiss father-in-law's petition seeking eviction as licensee); Valentino v. Reyes, 2006 Misc. LEXIS 4021 [Civ. Ct. Bronx County 2006] (petitioner could evict girlfriend with whom he resides); Blake v. Stadford, 188 Misc 2d 347, 725 NYS2d 189 [Nassau County Dist. Ct. 2001] (boyfriend could evict former girlfriend, the mother of his child, who obtained a protective order against him, as a licensee)).

Most recently, in Lally, supra , a case where a license holdover proceeding was permitted against the petitioner's daughter-in-law, the Court poignantly distinguished the cases that permit licensee "familial" proceedings from those that do not. The Court noted that "[w]hether the parties resided together [while not the sole factor] has often been the `critical factor' in determining whether they are considered to be a `family' for legal purposes . . . . Another consideration . . . was whether there was a duty of the property owner to support [the] alleged licensees. Encompassed in the duty to support is the parties' social and financial dependence" (Lally, supra , 23 Misc 3d at 941). The determination as to the party's status is to be made by the court on a case-by-case basis.

In the instant matter, it is undisputed that Mr. Robinson and Respondent resided together in the Subject Property prior to Mr. Robinson's incarceration. Moreover, the credible testimony suggested that Respondent paid the utilities but was under no obligation to pay rent or the mortgage arrears. In addition, there was no credible evidence suggesting, expressly or impliedly, that Ms. Holder's occupancy was a leasing of the Subject Property or that she was in possession at the will of Ms. Robinson or Mr. Robinson.^[FN1] To the contrary, Mr. Robinson and Ms. Holder have a child together to whom they are both responsible and obligated to provide for his care and well-being. Their joint occupancy in the Subject Property began because of their son and there was no credible evidence presented from which it can be concluded that they will not continue to reside together upon Mr. Robinson's eventual release from incarceration. [*5]

It was further undisputed that Ms. Holder has been residing in the Subject Property without Mr. Robinson for a majority of her two (2) year occupancy and there was no proof that Ms. Holder did not have exclusive possession of the Subject Property. To the contrary, the credible testimony reasonably suggested that Petitioners acquiesced to her occupancy and she continues to have exclusive possession (See Sherhan v. Numyal Food, Inc., 20 Misc 3d 40 [App. Term, 2d & 11th Jud. Dists. 2008]).

Accordingly, Ms. Holder's occupancy does not constitute a licensee agreement, and, therefore, Petitioners cannot succeed in this summary license holdover proceeding.

B.The Familial Exception to Eviction in a Summary Proceeding

This case poses what would appear to be an issue of first impression; namely, does the familial exception to eviction by a summary proceeding apply where a grandmother and unmarried father seek to evict the mother of their grandchild and child, respectively, after the mother was given and maintains exclusive possession of the Subject Property because of the minor child and further where the petitioner father is incarcerated?

The familial exception is derived from the Rosenstiel decision, supra , wherein the Appellate Division, First Department held that a husband may not evict his wife from the marital residence because until the divorce was final, the "marriage relationship" was still in tact (Rosenstiel, supra , 20 AD2d at 71, 245 NYS2d at 395) (wife was in possession not by virtue of the husband's "permission" but rather the "special rights incidental to the marriage contract and relationship")). Several years after Rosenstiel, the Court of Appeals expanded the familial exception to include domestic partners holding that a significant factor in determining whether the familial exception is applicable is whether the parties resided together as a family unit with "some indicia of permanence or continuity" (Braschi v. Stahl Assoc. Co., 74 NY2d 201, 211, 544 NYS2d 784, 788-89 (1989) (holding unmarried adult lifetime partners may constitute a "family unit" thereby exempting eviction pursuant to New York City Rent and Eviction Regulations)). The Court determined that "[t]he term family . . . should not be rigidly restricted to those people who have formalized their relationship by obtaining, for instance, a marriage certificate. . . The intended protection against sudden eviction should not rest on fictitious legal distinctions or genetic history, but instead should find its foundation in the reality of family life" (Id.).

As indicated above, numerous courts have since further extended the familial exception to include unmarried mothers, grandchildren, adult children and stepchildren (Griffith, supra , N.Y.L.J., Dec. 11, 2008, at 25, col. 1 (former girlfriend); Williams, supra , 13 Misc 3d at 399, 822 NYS2d at 418 (grandchildren); Sirota, supra , 164 Misc 2d at 966, 626 NYS2d. at 672 (adult children); Nagle, supra , 134 Misc 2d at 753, 512 NYS2d at 761 (teenage stepchildren)).

Based upon the credible testimony and documentary evidence, the Court concludes that the familial exception to eviction in a summary proceeding is applicable to Ms. Holder. The Court's [*6]determination is not intended to create a bright-line rule for each and every instance in which a grandparent and/or unmarried parent seeks to evict the child's other parent. Rather, each determination and application of the familial exception must be based on the particular facts and the credible testimony and documentary evidence presented.

Although not an ideal familial situation, the instant matter depicts a "family" under the modern more flexible approach to the family unit. It was undisputed that Ms. Holder moved into the Subject Property with Mr. Robinson because she had become pregnant with their child, Nicholas. A brief engagement ensued which was eventually broken but Ms. Holder continues to reside in the Subject Property and cares for their child. Further, she is clearly the sole provider for the child during Mr. Robinson's incarceration. The interdependency and support between Mr. Robinson and Ms. Holder is centered around Nicholas and will continue to do so no matter where Mr. Robinson resides and/or if they ever decide to marry. Moreover, Ms. Holder's testimony describing her intention to remain a family unit was not refuted by Mr. Robinson who did not testify.

The circumstances here are based on the parties' reality of family life (Braschi, supra , 74 NY2d at 211, 544 NYS2d at 788). Moreover, notwithstanding the pending foreclosure, there was "indicia of permanence or continuity" in this family relationship (Id.) Other than Ms. Robinson's complaint regarding her apparent lack of a relationship with her grandson, Petitioners failed to introduce any credible evidence that the family relationship was about to dissolve or change.

The Court is mindful, however, that but for Nicholas, Petitioners would perhaps be permitted to evict Ms. Holder . However, the reality is that Mr. Robinson and Ms. Holder have a child who has been residing in Mr. and Ms. Robinson's property for his entire life with his mother. While it is anticipated that the pending foreclosure may require Ms. Holder and her son (as well as another child of Ms. Holder's from another relationship) to vacate the Subject Property, Respondent's right to remain in the Subject Property cannot be revoked through a summary proceeding (Williams, supra , 13 Misc 3d at 399, 822 NYS2d at 418).

C.Mr. Robinson May Not Evict His Son

The issues involving the John and Jane Does, as minor children, in no way alters the result against the Respondent. Initially, since there was no proof of service of the Notice of Petition and/or Petition in the Court's file upon a John or Jane Doe, the Petition is dismissed as against them.

The Court notes, however, that notwithstanding the lack of service on the Does, "[a] father has the obligation to provide support to his children" including providing shelter (Family Court Act §§ 413, 513). The United States Supreme Court has held that children born out of wedlock are afforded the same right to support as those born within a marriage (See Jimenez v. Weinberger, 417 U.S. 628, 94 S.Ct. 2496 (1974)). Therefore, Mr. Robinson could not maintain this action against his son even if service had been effectuated upon the toddler. [*7]

Accordingly, it is hereby

ORDERED, that the Petition is dismissed.

This constitutes the Decision and Order of the Court.

Dated: August 6, 2009

______________________________________

STEPHEN L. UKEILEY, J.D.C.