City Court of Long Beach, December 7, 2023

Nassau Suffolk Law Services Committee, Inc., Hempstead (Vivian R.M. Storm of counsel), for Qingling Zhao, respondent.

Feldherr & Feldherr, Westbury (Craig Feldherr of counsel), for petitioners.

The petitioners commenced this holdover summary proceeding by the filing of a notice of petition and petition dated July 26, 2023, seeking a warrant of eviction and judgment of possession in connection with the premises identified as 427 West Market Street, Long Beach, New York 11561.

The petitioners, Rosemary Hughes and John Rogers, are the ex-wife and son, respectively, of Joel Rogers. As alleged by Ms. Hughes, at the time of their divorce, she and Joel Rogers each held a 50% tenant in common interest in the subject premises. Joel [*2]Rogers subsequently married the respondent, Qingling Zhao, on or about May 6, 2014, and they lived together at the subject premises as a married couple. Upon learning of the marriage, Ms. Hughes expressed an interest to Joel Rogers in selling the house. Inasmuch as Joel Rogers wished to remain living at the subject premises for the remainder of his life, Joel Rogers conveyed his interest in the subject premises to his son, John Rogers, and retained a life estate interest for himself. On or about March 27, 2023, Joel Rogers died.

In a 10 day notice to quit dated July 5, 2023, and served upon the respondent on July 11, 2023, it is alleged that the respondent "entered upon said Premises as a Licensee . . . under the permission of the Licensor Joel Jerry Rogers. Your permission to remain on the Premises has been terminated, and your license has been revoked upon the death of Joel Jerry Rogers on March 27, 2023" (notice to quit, annexed to petition). The petition dated July 26, 2023, contains similar language, alleging that the respondent "entered into possession of the subject premises with the permission of and as a licensee of Joel Jerry Rogers, who was the life tenant at the premises until his death on March 27, 2023" and that the respondent's "license terminated upon the death of Joel Jerry Rogers on March 27, 2023" (petition ¶¶ 5, 6). The respondent now moves to dismiss{**82 Misc 3d at 349} the petition, arguing that she was never a licensee and therefore the instant proceeding is not the proper mechanism through which her removal from the subject premises can be sought.

Pursuant to Real Property Actions and Proceedings Law § 713 (7), a summary proceeding may be maintained against an occupant who "is a licensee . . . entitled to possession of the property at the time of the license, and (a) [their] license has expired, or (b) [their] license has been revoked by the licensor, or (c) the licensor is no longer entitled to possession of the property." Although RPAPL 713 (7) does not explicitly define the term "licensee," a licensee in the real property context is generally understood to be an individual who is granted express or implied permission by the owner to use and/or occupy the subject premises (see Nauth v Nauth, 42 Misc 3d 672, 674 [Civ Ct, Bronx County 2013]; Minors v Tyler, 137 Misc 2d 505, 507 [Civ Ct, Bronx County 1987], quoting Rosenstiel v Rosenstiel, 20 AD2d 71 [1st Dept 1963]).

At issue in the instant matter is whether the respondent, who entered the premises as the spouse of the co-owner of the premises (who subsequently conveyed his interest in the premises to his son and retained a life estate), is properly characterized in the petition as a licensee, from the time of her entry onto the premises.

" 'A life estate is more than merely a right of enjoyment. Rather, a life tenant is entitled to possession, control, and enjoyment of the property for the duration of his or her life' (56 NY Jur 2d, Estates, Powers, and Restraints on Alienation § 35). The 'substance of a life estate consists in the life tenant's right to exclude all others from the possession of the subject property for the duration of his or her own life' (Torre v Giorgio, 51 AD3d 1010, 1011 [2008] [internal quotation marks omitted])." (Kurek v Luszcyk, 51 Misc 3d 19, 20 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015].)

For the purposes of this analysis, the fact that Joel Rogers' status with respect to the subject premises changed during the course of the marriage from a joint deed holder to a life tenant is of no moment. Indeed, for the entirety of his nearly 10 year marriage to the respondent, he enjoyed essentially all the benefits of ownership, including the right to exclude others from the possession of the property.{**82 Misc 3d at 350}

The seminal case that addressed the issue of whether a spouse could evict another spouse as a mere licensee is Rosenstiel v Rosenstiel. In that case, the Appellate Division, First Department held that one spouse could not evict the other from the marital residence, despite holding sole ownership of the premises, because the spouse's right to occupy the marital [*3]residence stems not from the permission of the property owner spouse, but from the family relationship itself. As such, a spouse is not a mere licensee. Over the subsequent 60 years, courts have expanded the rights set forth in Rosenstiel and determined that numerous other family relationships do not constitute licensor/licensee status and thus eviction is not permitted under RPAPL 713 (7) (see e.g. Nauth v Nauth [divorced spouse]; Kakwani v Kakwani, 40 Misc 3d 627, 631 [Nassau Dist Ct, 1st Dist 2013] [sister-in-law]; Robinson v Holder, 24 Misc 3d 1232[A], 2009 NY Slip Op 51706[U] [Suffolk Dist Ct, 2d Dist 2009] [ex-girlfriend and children of the relationship]; DeJesus v Rodriguez, 196 Misc 2d 881 [Civ Ct, Richmond County 2003] [same]; Sirota v Sirota, 164 Misc 2d 966 [Civ Ct, Kings County 1995] [adult children]; Minors v Tyler, 137 Misc 2d 505 [Civ Ct, Bronx County 1987] [non-married partner]; Nagle v Di Paola, 134 Misc 2d 753 [Nassau Dist Ct, 1st Dist 1987] [minor stepchildren]; see generally Braschi v Stahl Assoc. Co., 74 NY2d 201 [1989] [same-sex partner]).

Although the petitioners argue that Rosenstiel has "fallen out of favor in the New York Courts, and especially, the second department" (affirmation in opp ¶ 3), this court strongly disagrees. The Kakwani case provides a thorough and comprehensive summary of the history and evolution of the law since Rosenstiel with respect to who may be deemed a licensee which completely undermines the petitioners' argument. While the determination of whether a family member is a licensee should be undertaken on a case by case basis (see Nauth v Nauth; Kakwani v Kakwani), it has been firmly established that a spouse cannot evict the other spouse through a summary proceeding absent an annulment of the marital relationship or a modification thereof by a court order or agreement (see Rosenstiel v Rosenstiel; DeJesus v Rodriguez; Nagle v Di Paola; Billips v Billips, 189 Misc 2d 144 [Civ Ct, NY County 2001]).

In any event, in support of their contention regarding Rosenstiel, the petitioners cite to three cases (only one of which, the court notes, is within the Second Judicial Department), all of{**82 Misc 3d at 351} which are either inapplicable here and/or wholly fail to prove the petitioners' point. Halaby v Halaby (44 AD2d 495 [4th Dept 1974]) involved circumstances in which the respondent wife's rights had been modified and defined by court decree, in the form of an order of support. The Halaby court explicitly distinguished Rosenstiel on such grounds. Clemente v Liberato (2015 NY Slip Op 31396[U], *3 [Civ Ct, Bronx County 2015]), although critical of Rosenstiel because of its "quaint . . . chivalric notions of the duties of husbands to their wives," concerned cohabitants who were never married. Unlike the instant matter, in which the parties were married for 10 years, virtually the entire extent and nature of the unmarried parties' relationship in Clemente were in dispute. For this reason, the Clemente respondent's motion to dismiss the summary proceeding on the ground that she was not a licensee was denied. In the instant matter, while the petitioner Ms. Hughes alleges in her affidavit in opposition to the motion that the respondent traveled extensively for work and supported herself, these allegations, even if true, do not have any bearing upon the decedent's and respondent's status as a married couple or the analysis of the respondent's status as an occupant of the marital residence during the decedent's lifetime. Finally, although petitioners' counsel contends, without elaboration, that Heckman v Heckman (55 Misc 3d 86 [App Term, 2d Dept, 9th & 10th Jud Dists 2017]) "basically eviscerated the familial exception espoused by the Court in Rosenstiel" (affirmation in opp ¶ 7), a review of Heckman reveals nothing of the sort. In fact, while the Heckman court found that it was inappropriate to categorically extend Rosenstiel to prohibit summary proceedings involving any and all related parties, and clearly intended to restrict, not expand upon the rights awarded to certain familial [*4]relationships, it explicitly acknowledged that "there are familial relationships that will often prevent an occupant from fitting into a category of respondent subject to eviction pursuant to RPAPL 713" (Heckman at 90; see generally Morris v Morris, 63 Misc 3d 453, 454-455 [Civ Ct, Bronx County 2018] [describing Heckman's criticism of Rosenstiel as "out-of-touch with the direction the law has been moving for the six decades since Rosenstiel" and the logic employed in so doing as "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{**82 Misc 3d at 352} years since Rosenstiel. The Heckman Court seems intent on turning the clock backwards in many areas of the law"]).

Based upon its review of the law and the particular facts and circumstances of the instant matter, this court finds that the petitioners' categorization of the respondent's status as a licensee, from her entry onto the subject premises, is incorrect. In short, based strictly upon the facts as presented here, where a spouse enters the marital residence as the spouse of the co-owner of the premises, who later conveys his interest in the premises but retains a life estate, a licensor/licensee relationship is not created between the married couple. As such, the petitioners' assertions to the contrary in their 10 day notice to quit and petition regarding the respondent's status as a licensee from her entry onto the premises are inaccurate.

The court notes that the petitioners do not argue and do not allege a theory that upon Joel Rogers' death, they granted the respondent a license to continue to live at the subject premises, until such time that they revoked such license and served her with a 10 day notice to quit. In any event, the court would not be prepared to state that Joel Rogers' death changed the respondent's status from having the protection of the family exception, to licensee status. In that regard, Matter of Brennecke v Smith (42 Misc 2d 935 [Westchester County Ct 1964]) is somewhat instructive. In that case, the parties were married and the husband subsequently purchased the marital residence. Four years later, the husband conveyed title to the wife. Nine years after that, the wife moved out of the marital residence and was "in and out" of the house for two years. The wife then conveyed the premises to a friend, who commenced a summary proceeding against the husband on the ground that he was a mere licensee whose license had been terminated. The Justice Court dismissed the proceeding, and such dismissal was affirmed on appeal. In so affirming, the Brennecke court concluded that under the circumstances, the petitioner failed to establish that the husband was a mere licensee.

Also of interest is Murawski v Melkun (71 Misc 2d 575 [Civ Ct, Queens County 1972]). In that case, the parties were married "in the later stages of their lives" (id. at 575). They lived together in an apartment solely owned by the husband. Twelve years after their marriage the husband executed a new deed transferring his sole title of the subject premises to himself, his daughter, and his son-in-law as joint tenants. Two years later, the husband died. The son-in-law then commenced a summary{**82 Misc 3d at 353} proceeding against the wife, contending that she should be evicted upon the ground that she was a squatter. The court disagreed with this categorization and dismissed the petition. Although the instant matter differs from Murawski in that there, the widowed wife was categorized as a squatter as opposed to a licensee, it is notable that the Murawski court was clearly troubled by the idea that she, as the widow of the decedent whose ownership rights to the marital residence went to another upon his death, would be "discarded as unnecessary surplusage" in a summary proceeding if she could be identified as a squatter (Murawski at 576).

In light of the foregoing and based upon the mischaracterization of the respondent's status [*5]upon her entry onto the subject premises as a mere licensee, the respondent's motion is granted, and the petition is dismissed.