| Goffe v Goffe |
| 2007 NY Slip Op 50048(U) [14 Misc 3d 130(A)] |
| Decided on January 8, 2007 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Appeal from a final judgment of the District Court of Nassau County, First District (Anna R. Anzalone, J., at trial), entered October 15, 2004. The final judgment, after a nonjury trial, awarded possession to landlord.
Final judgment reversed without costs and petition dismissed.
Landlord Leslie Goffe brought this proceeding against his son, Jason Goffe, pursuant to RPAPL 713 (3), alleging in the petition, dated July 20, 2004, and in the predicate 10-day notice, served on June 29, 2004, that occupant had entered into possession without consent and that he was a squatter. At trial, landlord testified that his wife, Lillian Goffe, had loaned the key to their son Jason to spend one night, but Jason refused to return the key or leave the house. Occupant testified that his mother gave him the key "to stay in the home until further notice from her," and that when he advised her that he wanted to stay, she agreed. The court admitted into evidence Mrs. Goffe's written statement, dated July 10, 2004, that she did not want Jason evicted. Also admitted was Mrs. Goffe's letter of retraction, dated August 4, 2004. In the letter, Mrs. Goffe said that she understood "for various reasons" that her son would not be able to stay in the subject premises. At trial, Mrs. Goffe testified that she did not want her son evicted, but that her husband told her that he could lose the house to foreclosure if rental income were not generated. After trial, the court awarded a final judgment of possession to landlord based on occupant's "unlawful holdover."
A squatter proceeding can be maintained only if the occupant never had permission, from the landlord or other person entitled to possession, to be on the premises (see Williams v Alt, 226 NY 283 [1919]; Robbins v De Lee, 34 AD2d 870 [1970]; Bathija v Chaudhry, NYLJ, [*2]May 6, 1998 [App Term, 2d & 11th Jud Dists]). Since the testimony and documents entered into evidence demonstrate that occupant entered the premises with permission, this squatter proceeding cannot be maintained. Accordingly, the final judgment is reversed and the petition dismissed.
Rudolph, P.J., McCabe and Lippman, JJ., concur.
Decision Date: January 8, 2007