Civil Court of the City of New York, Bronx County, December 3, 2018

Joseph A. Altman P.C. (Joseph A. Altman of counsel) for petitioner.

Law Offices of Sandra M. Prowley (Sandra M. Prowley of counsel) for respondent.

Petitioner moves to reargue this court's decision of August 8, 2018, wherein the court determined that this was a family dispute over which it had no jurisdiction and, because there was already an existing proceeding pending before the Bronx County Surrogate's Court between the parties, dismissed the within proceeding rather than transfer it to an appropriate forum. Petitioner relies primarily upon the decision in Heckman v Heckman (55 Misc 3d 86 [App Term, 2d Dept, 9th & 10th Jud Dists 2017]) in arguing that this court misinterpreted, or misapplied, the law in making its determination. In Heckman, the daughter/trustee of the deceased owner sued the daughter-in-law of the deceased owner for eviction under RPAPL 713 (7), alleging her to be a licensee. District Court found the respondent to be a licensee but declined to allow an eviction under a "family exception" to such eviction (the lower court's decision is illogical as the so-called "family exception" is that the person sued is not a licensee because of the exception, thus not subject to summary eviction under RPAPL 713 [7]). The facts and relationships here are different and distinguishable from those in Heckman. Nevertheless, this court finds the Heckman decision out-of-touch with the direction the law has been moving for the six decades since Rosenstiel v Rosenstiel (20 AD2d 71 [1st Dept 1963]) was decided and declines to follow Heckman for the reasons set forth below.

The court in Heckman, referring to Rosenstiel, said that decision was based upon "the existence of a support obligation" (55 Misc 3d at 88), and that other decisions extending what has come to be termed the "family exception" beyond a relationship in which a support obligation exists are wrong and not supported by statute. But the Heckman court completely ignored the detailed analysis in Rosenstiel of the legislative history giving rise to amendments to the then existing Civil Practice Act §§ 1411 (subd [7] and [8]) and 1414 (subd [1-a] and [5-a]) (subsequently replaced by RPAPL 713). The Rosenstiel Court noted (id. at 74, 76), speaking of the Law Revision Commission: "The study noted that the statute as it then existed did not authorize summary relief in many cases where a landlord-tenant relationship did not exist and where, following an original entry upon premises which was lawful, the occupant later,{**63 Misc 3d at 455} on remaining in possession, became a trespasser." (Id. at 74 [citation omitted].) Then, in defining and explaining the use of the term "licensee" as used by the legislature in the revisions to the Civil Practice Act, the Rosenstiel Court stated:

"As generally understood in the law of real property, 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 or privilege." (Id. at 76 [emphasis added].)

This is the crux of the issue before this court—does respondent here have "an interest in the property?" Respondent has specifically, and directly, challenged the transfer of title to his sister, the petitioner herein, and petitioner has failed to address that issue. Since this court does not have jurisdiction over issues of title to real property, it does not have jurisdiction to determine the efficacy of the deed, a central issue to this dispute.

For a court to limit Rosenstiel, as was done in the Heckman decision, is to ignore the more encompassing purview of the Rosenstiel decision, which, presciently, envisioned that there could be circumstances in which, despite there being no "obligation to support," one might not be a licensee. This court believes this is just such an instance. Here, respondent, a 76-year-old disabled veteran, has lived in what was clearly the family home, for 60 years. First, he claims to have been paying bills on the property, a fact petitioner also fails to address and thus is deemed to have admitted, which could be deemed a form of "rent" in the broader use of that term, arguably making him a tenant and not a licensee, and second, and more importantly, he does raise a claim of "an interest in the property," and is in the Bronx County Surrogate's Court challenging the purported transfer of title from the party's now deceased father to respondent's sister, the petitioner. The Heckman decision attempts to draw a line in the sand (a so-called "bright-line" [*2]rule) which would completely disregard the allegations and issues in dispute here, and simply reduce the proceedings to nothing more than rote adherence to an artificial, and misguided, extremely restrictive interpretation of the law, rather than the more compassionate, and encompassing, interpretation that the Court in Rosenstiel envisioned, and that other courts in this state have embraced in the 55 years since Rosenstiel. The Heckman court seems intent on turning the clock backwards in{**63 Misc 3d at 456} many areas of the law, an idea this court does not comprehend. The law is not stagnant but changes and adapts to the changes in societal mores while still balancing the scales between litigating parties. This court does not adhere to a strict construction of the law, rather viewing it as an evolving or living thing that must change and adapt to the times.

In the case of Kakwani v Kakwani (40 Misc 3d 627 [Nassau Dist Ct 2013, Bjorneby, J.]) the court laid out the history of these changes and adaptations in the law as to who is or is not a licensee, starting with Rosenstiel, with great clarity. There the court, starting with the legislative history as described above, brings the law forward, first by citing Matter of Brennecke v Smith (42 Misc 2d 935 [Westchester County Ct 1964]) that a "respondent could not be reduced to the status of a licensee simply because the respondent's wife vacated the marital residence, and denied the petition even though the respondent was not actually a member of the petitioner's family." (Id. at 631.) Here, respondent is most certainly a member of petitioner's family, but to follow Heckman, simply by the passing of their father are we to conclude that makes respondent a licensee subject to summary eviction? This court cannot, and does not, accept such illogical reasoning as Heckman would require.

Then came Minors v Tyler (137 Misc 2d 505 [Civ Ct, Bronx County 1987]), which expanded the "family exception" as to whom may be considered a licensee to include parties who live together as spouses without an actual marriage occurring. (See also Nagle v Di Paola, 134 Misc 2d 753 [Nassau Dist Ct 1987] [stepchildren not licensees].) Judge Bjorneby then turns to Braschi v Stahl Assoc. Co. (74 NY2d 201 [1989]), (where the Court of Appeals gave its imprimatur to the evolving family exception) quoting that decision: "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. at 631 [emphasis added].) Heckman would limit Braschi in a way that other courts in this state have not, seeking rather to protect persons from the "sudden evictions" that Braschi sought to avoid. Instead of the cold calculation of the Heckman court, the Court of Appeals in Braschi, and its progeny, have sought a more humane calculation of how the definition of family has evolved and changed over the decades since Rosenstiel, and to bring the law into the modern era.{**63 Misc 3d at 457}

Continuing his analysis of the evolving family exception, Judge Bjorneby next cites Sirota v Sirota (164 Misc 2d 966 [Civ Ct, Kings County 1995]), a summary proceeding wherein the petitioner, the father of the respondents, tried to oust his children, who had resided there for 27 and 31 years. Though not a licensee proceeding but a landlord-tenant action, the court in Sirota stated:

"This court finds that the premises in this case have been used as the family residence; in it respondents . . . have lived with petitioner . . . for nearly 30 years, making it their home. . . . Under such circumstances, the petitioner could not, merely by walking out, constitute them tenants whom he may oust by summary proceeding. The remedy provided by [*3]RPAPL article 7 is limited to instances of landlord-tenant relationship." (Sirota at 968.)

What the court in Sirota is saying is that this is more than a mere landlord-tenant relationship, it was, and remains, the family home, and the parties residing therein are not subject to summary eviction (the "sudden eviction" referred to in Braschi). Is this not analogous to the within proceeding? Here, respondent, the petitioner's brother, has resided in the family home for 60 years. Should he be subject to summary proceedings any more than the children in Sirota?! Is that really what the law is about?! The Heckman court would, apparently, answer those questions in the affirmative, resulting in an outcome that this court can only deem as obscene, and completely rejects.

Judge Bjorneby cites to Blake v Stradford (188 Misc 2d 347 [Nassau Dist Ct 2001, Fairgrieve, J.]), which decided that the petitioner therein could bring a summary proceeding against his ex-domestic partner, finding she was a mere licensee, while not allowing the eviction of their children, finding their right to reside in the family home (that term again) stemmed from special rights incidental to the parent-child relationship, stating Blake relied upon Morone v Morone (50 NY2d 481 [1980]) (this court notes that Morone was decided nine years before Braschi), and then rejects that decision stating

"that the . . . court's reliance upon Morone is misplaced. . . . The Morone case was a 'palimony' case in which the plaintiff sought compensation for domestic services performed, and upon an oral contract for maintenance and support, despite the absence of a marriage. It had nothing to do with an{**63 Misc 3d at 458} eviction from the family residence or summary proceedings under RPAPL 713." (Id. at 633.)

Judge Bjorneby then addressed DeJesus v Rodriguez (196 Misc 2d 881, 884 [Civ Ct, Richmond County 2003, Birnbaum, J.] [where the court, citing to Braschi among other decisions, wrote: "The 'nuclear family' arrangement is no longer the only model of family life in America. The realities of present urban life allow many nontraditional families . . . The law has evolved over the years to recognize these social realities and to afford parties living together the appropriate protections"]); and Williams v Williams (13 Misc 3d 395, 399 [Civ Ct, NY County 2006, Martino, J.] [where the court wrote, citing to Braschi and DeJesus, among other decisions: "These cases seemingly show that occupancy due to familial relationship does not constitute a licensee agreement as intended by RPAPL 713 (7). There are various forms of family relationships ranging from spousal, parent and child, and even nonmarried couples. They are unique and thus should not be terminated through summary proceedings, which tend to be speedy. Instead, more appropriate avenues must be taken such as ejectment actions or proceedings in Family Court"]). Judge Bjorneby went on to reject bright-line rules, which, it appears to this court, is exactly what the Heckman decision is trying to create. He wrote:

"While bright-line rules . . . certainly have their allure, the fact patterns which arise in this area of the law simply do not lend themselves to such mechanical analysis. Every family, traditional or nontraditional, is different, and each case must be carefully analyzed by the court on a case-by-case basis to determine whether or not the parties were involved in a true family relationship as opposed to mere friends or temporary live-in paramours. If in fact a family relationship exists, a titled family member should not be permitted to break up the family unit and evict another family member in summary fashion with a 10-day notice to quit. In some areas of the criminal law, such as search and seizure, one's home is cloaked with special protections. [*4]Likewise, in the civil law the home is a special place from which, as discussed above, family members may not be summarily removed at the whim of the title holder." (Id. at 636 [citations omitted].){**63 Misc 3d at 459}

He prefers the analysis set forth by Judge Ukeiley, author of The Bench Guide To Landlord & Tenant Disputes in New York (2011), and quotes him as follows:

"With limited exceptions, a family member may not evict another family member in a summary proceeding. This is the case because where the occupancy of the subject premises arises out of the 'familial relationship,' such as an adult child who has lived in the family home since birth, a summary proceeding may not be maintained." (Id. at 635 [emphasis added].)

In conclusion, Judge Bjorneby states:

"Since, technically, the petitioner has no legal obligation to support the respondent, the respondent would not have the theoretical protection of a 'statutory opt-out' analysis and would be subject to eviction as a licensee, . . . . If the legislature ever intended such an unjust result, which this court seriously doubts, then it needed to spell it out when it enacted RPAPL 713 (7). . . .

"All this court holds is that a family member may not be summarily evicted from the family home with a 10-day notice to quit. A more deliberate process is required and is readily available." (Id. at 637.)

This court couldn't agree more, nor said it better, than Judge Bjorneby, and adopts his conclusion fully. The motion to reargue is granted to the extent of allowing reargument, and on reargument, is denied.