ROXANNE THOMAS ADMINISTRATOR v. THOMAS JOHN DOE JANE DOE (2026)

DECISION

Petitioner commenced this residential holdover summary proceeding pursuant to RPAPL article 7 seeking possession of the single-family residence located at 212 North Monticello Drive, Syracuse, New York. The verified petition expressly proceeds under RPAPL 711 and alleges that Respondents are not subject to an active lease, that their tenancy, "if any," is at most a month-to-month tenancy, and that their "lease or verbal/written rental agreement ended on May 31, 2026." The predicate notice similarly advises Respondents that the landlord was terminating their "lease or verbal/written rental agreement."

The matter thereafter came before the Court on several occasions. Following an application by Respondent Trey Bernard Thomas to reopen the proceeding and stay enforcement of a previously issued warrant, the Court restored the matter to the calendar and conducted an evidentiary hearing on August 14, 2026. The hearing was intended to determine the legal nature of Respondent's interest in the premises and, consequently, whether the relationship asserted by Petitioner may properly be adjudicated through a summary proceeding in City Court.

Roxanne Thomas, Petitioner's administrator, testified on behalf of the Estate. Trey Bernard Thomas testified on his own behalf. During the hearing, it became undisputed that Iola Thomas died intestate, that Roxanne Thomas and Deborah Thomas were Iola Thomas's surviving daughters, that Deborah Thomas thereafter died testate, and that the resulting beneficial interests in the subject real property are 50 percent to Roxanne Thomas, 25 percent to Trey Bernard Thomas, and 25 percent to Trey Thomas's sister.

The Court has additionally reviewed the related, undisputed Surrogate's Court records concerning the Estates of Iola Thomas and Deborah Thomas, including Deborah Thomas's will. A court may take judicial notice of undisputed court records and files, including records maintained in another court (see Matter of Khatibi v Weill, 8 AD3d 485, 485 [2d Dept 2004]). Here, the Surrogate's Court records confirm the ownership structure expressly acknowledged by Petitioner's counsel and Petitioner's own witness during the hearing.

The threshold question before this court is whether an owner of an undivided 25 percent interest in real property may be removed from that property through a summary landlord-tenant proceeding brought by another cotenant or by the fiduciary administering the estates through which those ownership interests arose.

The Court finds based upon Respondent's 25 percent ownership interest in the real property; Respondent is deemed to be a tenant in common. Accordingly, for the reasons articulated herein the petition is dismissed.

FINDINGS OF FACT

I. Testimony of Roxanne Thomas

Roxanne Thomas testified that she is the daughter of Iola Thomas, the sister of Deborah Thomas, and the aunt of Respondent Trey Bernard Thomas. She presently serves as administrator of the Estate of Iola Thomas.

Ms. Thomas testified that Iola Thomas held title to 212 North Monticello Drive and on January 6, 2004 died without a will. At the time of Iola Thomas's death, Roxanne Thomas and Deborah Thomas were her surviving daughters. Ms. Thomas explained that, following their mother's death, she and Deborah did not dispute their interests in the property.

Ms. Thomas testified that Deborah thereafter lived at the premises for many years and raised Trey and his sister there. Although the family discussed formally transferring the property, no deed reflecting the family's resulting interests was recorded. Ms. Thomas testified that the family did not consider that omission significant at the time because there was no disagreement between her and her sister concerning the property.

Ms. Thomas testified that Trey resided at the premises during his childhood but contended that he ceased residing there in approximately March 2019. She further testified that he was not residing there when she visited Deborah in 2023 and that, immediately before Deborah's death, Trey was spending time elsewhere.

Deborah Thomas died on March 17, 2025. Ms. Thomas testified that, after Deborah's death, Trey entered the premises on April 2, 2025 at approximately 2:21 a.m. Ms. Thomas characterized that entry as unauthorized and testified that she observed it through a security system installed at the property. She stated that she did not give Trey permission to establish a new residence there after Deborah's death.

Ms. Thomas nevertheless acknowledged that Trey had maintained a bedroom, clothing, photographs, and other belongings at the property. She acknowledged that Deborah had continued permitting Trey to use 212 North Monticello Drive as his mailing address and that Trey possessed identification and current mail bearing that address. She further acknowledged that, in approximately March 2025, before the April 2 incident, Trey contacted her while at the property with his daughter and asked her to deactivate the alarm system. Ms. Thomas testified that she did so.

Ms. Thomas testified that she pays the property taxes, water charges, and homeowners insurance associated with the premises. Trey placed the electrical service in his own name. Ms. Thomas stated that the Estate seeks possession so that she may complete administration of Iola Thomas's estate and Deborah Thomas's estate and ultimately determine what is to be done with the property.

Of particular importance, Ms. Thomas testified that, according to the family tree and the estate interests, she is entitled to 50 percent of the property and the remaining 50 percent is divided equally between Trey and his sister, giving each a 25 percent interest.

The Court credits Ms. Thomas's testimony concerning the family relationships, the history of ownership, Iola Thomas's intestacy, Deborah Thomas's residence at the premises, and the respective ownership interests. The Court need not resolve every conflict concerning Trey's physical presence at the premises between 2019 and 2025 because that dispute does not alter his ownership interest or the resulting disposition of this proceeding.

II. Testimony of Trey Bernard Thomas

Trey Thomas testified that 212 North Monticello Drive has been his family home since childhood. He disputed Ms. Thomas's assertion that he permanently left the premises in 2019. He acknowledged periods during which he was elsewhere, including periods of incarceration, time spent with the mother of his child, and a period immediately before his mother's death when he stayed at a shelter. He maintained, however, that he continued to regard 212 North Monticello Drive as his home and continued to maintain belongings, identification, mail, and a bedroom there.

Mr. Thomas testified that he assisted his mother during her illness and moved back and forth between the premises and another residence while caring for his child and attending to his mother.

Following Deborah Thomas's death, Trey returned to the premises with his daughter. He testified that utilities associated with his mother were discontinued and that he thereafter placed electrical and internet service in his own name and has continued paying those expenses.

Trey acknowledged that he does not pay rent to the Estate. There was no testimony from either witness identifying a monthly rental amount, security deposit, lease term, rental commencement date, or any other traditional incident of a landlord-tenant relationship between Trey and the Estate.

III. Judicially Noticed Estate Records

The Court takes judicial notice of the undisputed records maintained by the Onondaga County Surrogate's Court concerning the Estates of Iola Thomas and Deborah Thomas. Those records confirm the material ownership facts established at the hearing.

Iola Thomas died intestate. Her interest in the subject real property passed to her surviving distributees, Roxanne Thomas and Deborah Thomas, in equal shares. Deborah Thomas subsequently died testate. Her testamentary disposition resulted in her 50 percent interest passing equally to Trey Thomas and his sister. Thus, the present ownership interests are 50 percent to Roxanne Thomas, 25 percent to Trey Bernard Thomas, and 25 percent to Trey Thomas's sister.

The Court therefore finds that Trey Bernard Thomas presently owns an undivided 25 percent interest in 212 North Monticello Drive.

CONCLUSIONS OF LAW

I. Respondent's Ownership Interest Vested by Operation of Law

The first issue requires distinguishing record title from legal ownership.

Petitioner repeatedly emphasized that the deed remains in the name of Iola Thomas and that administration of Iola Thomas's estate has not yet been completed. Those facts do not mean that Iola Thomas's distributees acquired no ownership interest until a new deed was executed or the administrator completed the estate. New York law provides otherwise.

"When a property owner dies intestate, title to real property automatically vests in his or her distributees as tenants in common" (Matter of Saunders, 249 AD3d 736, 737 [2d Dept 2026]; see LCD Holding Corp. v Powell-Allen, 203 AD3d 811, 812 [2d Dept 2022]). That transfer occurs by operation of law at death. It is not dependent upon the subsequent execution of a deed in the distributees' names.

The same general principle applies when an interest in real property passes under a will. Title to real property devised by will ordinarily vests in the beneficiary at the testator's death, subject to the fiduciary's statutory authority and the necessities of estate administration (see Matter of Seviroli, 31 AD3d 452, 454-455 [2d Dept 2006]).

Accordingly, when Iola Thomas died intestate, her real property did not remain in a state of suspended ownership until someone eventually completed the paperwork. Her ownership interest passed by operation of law to her distributees. On the undisputed facts here, Roxanne Thomas and Deborah Thomas each acquired an undivided one-half interest.

When Deborah Thomas later died, her interest did not disappear or revert exclusively to Roxanne Thomas merely because the original deed still bore Iola Thomas's name. Deborah's ownership interest became subject to her testamentary disposition. The Surrogate's Court records confirm that Deborah's interest passed such that Trey and his sister each succeeded to an undivided 25 percent interest in the premises.

The absence of a newly recorded deed does not change that conclusion. Recording serves important purposes concerning notice and the chain of title. It does not create an intestate distributee's ownership interest where the law itself has already vested that interest.

II. A 25 Percent Cotenant Has a Right to Possess the Entire Property

A tenancy in common does not divide a residence into physical percentages. Trey Thomas does not own 25 percent of a bedroom, 25 percent of the kitchen, or some separately identifiable quarter of the house. His ownership is undivided.

The Fourth Department has explained that, in a tenancy in common, "each cotenant has an equal right to possess and enjoy all or any portion of the property as if the sole owner" (Loveless Family Trust v Koenig, 77 AD3d 1447, 1448 [4th Dept 2010], quoting Myers v Bartholomew, 91 NY2d 630, 632-633 [1998]). Similarly, the Court of Appeals has held that a tenant in common may occupy the whole premises so long as that cotenant does not interfere with the corresponding right of the other cotenants to occupy the premises (Jemzura v Jemzura, 36 NY2d 496, 503 [1975]).

The Fourth Department applied that principle directly in Cooney v Shepard (118 AD3d 1376 [4th Dept 2014]). There, several parties owned differing percentages of property as tenants in common. The defendant occupied the premises, while the other cotenants sought partition and rent for his exclusive use. The Fourth Department held that mere occupancy by one cotenant did not make that cotenant liable for use and occupancy absent an agreement or an ouster, precisely because a tenant in common possesses a legal right to occupy the entire property (id. at 1377).

The percentage of ownership therefore does not determine the percentage of physical possession. A cotenant owning 25 percent has no less legal right to enter and possess the premises than a cotenant owning 50 percent. Neither cotenant may simply declare the other's ownership interest subordinate and transform the other owner into a tenant, licensee, or trespasser.

In Kosc Development, Inc. v Scott (28 Misc 3d 138[A], 2010 NY Slip Op 51474[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]), the court addressed an attempted holdover proceeding involving tenants in common. The court held that because no landlord-tenant relationship exists between tenants in common, one tenant in common cannot maintain a holdover proceeding against another tenant in common.

The same reasoning applies here. Petitioner cannot obtain exclusive possession through an RPAPL article 7 holdover merely because Roxanne Thomas possesses a greater percentage interest, because she pays certain carrying expenses, or because she believes sale of the property is necessary. Those matters may be relevant to an accounting, partition, estate administration, reimbursement, or a determination that the property should be sold. They do not convert Trey's ownership into a tenancy.

III. Estate Administration Does Not Convert a Cotenant Into an Evictable Tenant or Licensee

The Court recognizes the Estate's legitimate concern that the property must eventually be administered. Roxanne Thomas is a fiduciary and may have obligations to protect the property, pay estate expenses, account for assets, and effectuate an appropriate distribution.

A fiduciary also possesses significant statutory authority over estate property (see EPTL 11-1.1 [b] [5]; SCPA arts 18, 19). Surrogate's Court may authorize the disposition of real property when necessary to pay expenses, debts, taxes, distribute the respective shares of those entitled to them, or accomplish another proper estate purpose (see SCPA 1901, 1902; Matter of Saunders, 249 AD3d at 737).

Those fiduciary powers, however, do not erase vested ownership interests or automatically entitle a fiduciary to evict one of the owners before the necessity and authority for a sale have been determined.

Matter of Seviroli is particularly instructive. There, the decedent's son acquired an undivided 30 percent interest in a condominium and held that interest as a tenant in common with other beneficiaries. The executrix obtained an order from Surrogate's Court awarding her possession and evicting the son and another occupant. The Appellate Division modified the decree, deleted the provisions granting possession and eviction, and remitted the matter to Surrogate's Court for a trial concerning whether sale of the property was actually warranted (Matter of Seviroli, 31 AD3d at 454-455).

A fiduciary may ultimately establish that sale of property is required for proper estate administration. If so, Surrogate's Court possesses broad authority to address the sale and the respective rights of the beneficiaries and distributees. But the anticipated possibility of a future sale does not first require, or independently authorize, treating a cotenant as a holdover tenant and evicting that person through City Court.

The traditional remedy available when cotenants can no longer continue joint ownership is an action for partition pursuant to RPAPL article 9. Partition permits a court of general equitable jurisdiction to determine the parties' respective ownership interests, require an accounting where appropriate, adjust credits and expenses, and determine whether physical partition or judicial sale is required. Indeed, Cooney itself involved a partition and sale among cotenants holding unequal percentage interests.

Because the property here remains intertwined with administration of the Estates of Iola Thomas and Deborah Thomas, Surrogate's Court may also be the appropriate forum to determine whether a fiduciary sale is necessary and authorized. This Court need not decide which plenary mechanism should ultimately be employed. However, a summary holdover proceeding in City Court is not a substitute.

IV. The Petition Independently Fails Because Petitioner Pleaded a Tenancy That the Evidence Did Not Establish

Even if Respondent had no ownership interest, the petition would nevertheless require dismissal.

Summary proceedings are creatures of statute. City Court possesses only the summary jurisdiction authorized by RPAPL article 7. The petitioner must therefore allege and prove the particular statutory relationship and ground upon which possession is sought.

The petition filed in this case is expressly styled a "Verified Eviction Petition (Holdover)." Its First Cause of Action is denominated "Recover Possession of Real Property - RPAPL § 711."

The petition alleges that Respondents "are not subject to any active lease agreement with Petitioner." It then alleges that Respondents' tenancy, "if any," is at most a month-to-month tenancy, and that their "lease or verbal/written rental agreement ended on May 31, 2026." The predicate notice similarly advises Respondents that "the landlord is ending your lease or verbal/written rental agreement." Those allegations invoke RPAPL 711 (1), which authorizes a holdover proceeding where a tenant continues in possession after expiration of the tenant's term without the landlord's permission. The evidence did not establish that relationship.

No witness identified a lease between Petitioner and Trey Thomas. No witness identified an oral rental agreement. No rental amount was established. No security deposit was paid. No commencement date for a tenancy was identified. No periodic rental payments were made to the Estate. Trey expressly testified that he never paid rent to the Estate, and Petitioner's witness did not dispute that testimony.

More significantly, even if every factual assertion made by Roxanne Thomas is fully credited, her testimony does not establish that Trey was a tenant. Her position was that he ceased residing at the premises years earlier and returned after Deborah's death without authorization. She described an allegedly unauthorized entry on April 2, 2025. That evidence, if credited, might bear upon some other theory of possession. It does not establish the month-to-month tenancy pleaded in this petition.

The Fourth Department recently addressed the importance of that distinction in Matter of Hauck v Heineman (2026 NY Slip Op 04722 [4th Dept 2026]). There, the petitioner commenced a nonpayment proceeding under RPAPL 711 (2). After trial, the Town Court instead granted possession on the theory that the respondents were holdovers under RPAPL 711 (1). The Fourth Department reversed, vacated the judgment and warrant, and dismissed the petition without prejudice. The Court emphasized that nonpayment and holdover proceedings are distinct statutory causes of action and that a petition alleging one may not sustain a judgment upon another when the facts supporting the alternate theory were not pleaded (id. at *1-2).

The rule applies with even greater force here. Petitioner pleaded that Respondent was a month-to-month tenant whose rental agreement expired. The proof established no tenancy at all. During the hearing, the theory shifted toward whether Respondent might instead be a licensee under RPAPL 713 (7), or whether he had entered without permission. Those are different relationships arising under different provisions of article 7.

The Court cannot convert an RPAPL 711 (1) tenant holdover petition into an RPAPL 713 (7) licensee proceeding. RPAPL 741 requires the petition to identify Respondent's interest in the premises and the facts upon which the proceeding is based. Those requirements are particularly important because the asserted relationship determines not merely the label attached to the case, but the statutory basis for the Court's summary jurisdiction.

Accordingly, even apart from Respondent's ownership interest, Petitioner failed to establish the landlord-tenant relationship alleged in its own petition.

V. The Alternative Licensee Theory Was Neither Pleaded Nor Proven

Because substantial argument at the hearing concerned whether Respondent could be characterized as a licensee, the Court addresses that issue briefly as an alternative ground.

RPAPL 713 (7) permits a summary proceeding where the respondent "is a licensee" of a person entitled to possession and the license has expired or been revoked. A real-property license generally arises from express or implied permission to use or occupy property, creating a personal privilege that does not itself confer an estate or ownership interest in the land (see Rosenstiel v Rosenstiel, 20 AD2d 71, 76 [1st Dept 1963]; Hughes v Qingling Zhao, 82 Misc 3d 347, 349 [City Ct, Long Beach 2023]).

The proof here never established a coherent licensee relationship. Petitioner's principal factual theory was that Trey returned to the premises without permission. But a contention that an occupant entered without permission does not itself establish that the occupant entered pursuant to a license. Conversely, the evidence also established that Trey had been raised in the property, that his mother raised her children there, that Trey maintained belongings and a bedroom at the premises, that his mother permitted him to continue using the address, and that Roxanne Thomas herself deactivated the alarm at Trey's request in March 2025 while he and his daughter were at the premises.

The Court was never presented with evidence establishing when an alleged license began, what its terms were, who granted it, whether it continued after Trey reached adulthood, whether any absence from the premises terminated it, whether Deborah later renewed or continued it, or precisely when and by whom it was revoked.

Those unanswered questions would create substantial difficulties in an RPAPL 713 (7) proceeding. They cannot be resolved by simply treating "not a tenant" as synonymous with "licensee." RPAPL article 7 contains separate statutory categories because those categories have separate elements.

In any event, Respondent's vested ownership interest makes the alternative licensee theory unavailable. A cotenant's right to possession arises from ownership, not from another cotenant's personal permission. One owner cannot transform another owner's vested right of possession into a revocable license simply by announcing that permission has ended.

V. The Familial Authorities Do Not Alter the Result

Petitioner submitted several authorities concerning what courts have described as the "familial exception," including Heckman v Heckman (55 Misc 3d 86 [App Term, 2d Dept, 9th & 10th Jud Dists 2017]), Halaby v Halaby (44 AD2d 495 [4th Dept 1974]), Young v Carruth (89 AD2d 466 [1st Dept 1982]), and Rosenstiel v Rosenstiel (20 AD2d 71 [1st Dept 1963]). None changes the result.

The phrase "familial exception" can itself obscure the proper sequence of analysis. RPAPL 713 does not begin with the presumption that every person without a lease is a licensee and then require that person to establish an exception based upon family status. The petitioner must first prove that the respondent actually falls within one of the statutory categories conferring summary jurisdiction.

Heckman makes that point expressly. It rejected a categorical familial bar after the trial court had already found that the respondent was, in fact, a licensee. At the same time, the Appellate Term specifically recognized that some familial relationships will prevent an occupant from fitting within an RPAPL 711 or 713 category in the first instance (Heckman, 55 Misc 3d at 90). Thus, where licensee status is actually established, kinship alone does not defeat the proceeding. But kinship does not relieve the petitioner of proving the license.

This Court likewise does not read the absence of a continuing support obligation as independently creating a license. Whether one family member is legally required to support another and whether an occupant entered and remained pursuant to a personal, revocable privilege are analytically different questions. RPAPL 713 (7) requires proof of the latter.

Nor does Halaby establish that every relative lacking a present support entitlement may be treated as a licensee. In Halaby, the rights of the respondent spouse had already been modified and defined through a Family Court support order. The Fourth Department distinguished Rosenstiel on that basis. As later explained in Hughes v Qingling Zhao (82 Misc 3d at 351), Halaby involved circumstances in which the spouse's rights had already been judicially redefined. It does not hold that a family relationship itself creates a license or that ownership may be disregarded.

Young v Carruth is further removed. It involved an estate proceeding against the decedent's cohabitant, who possessed no joint ownership or tenancy-in-common interest in the real property. Whatever application Young may have to a true licensee who remains after the death of the licensor, it does not authorize summary eviction of a cotenant exercising an ownership-based right of possession.

Accordingly, the Court need not determine the outer boundaries of any so-called familial exception. The doctrine is not necessary to decide this case. Respondent is not protected from eviction merely because he is related to Petitioner. He cannot be evicted in this proceeding because he owns an undivided interest in the premises and because Petitioner neither pleaded nor proved the landlord-tenant relationship upon which this RPAPL 711 proceeding was commenced.

VII. John Doe and Jane Doe

The petition must likewise be dismissed as against respondents John Doe and Jane Doe. No evidence was introduced identifying those respondents, establishing the nature of their occupancy, or demonstrating that either entered into a lease, rental agreement, or other landlord-tenant relationship with Petitioner. Accordingly, Petitioner failed to establish the RPAPL 711 cause of action pleaded against them.

To the extent any unnamed occupants reside at the premises through Trey Thomas, the Court need not determine their independent possessory rights. Trey Thomas presently possesses an ownership-based right to occupy the premises as a tenant in common. The respective rights of any persons residing with him may be addressed, if necessary, in connection with any future partition, estate sale, or other proceeding determining the cotenants' possessory rights.

Accordingly, it is hereby

ORDERED, that the petition is dismissed without prejudice as against Trey Bernard Thomas, John Doe, Jane Doe, and all other respondents named herein; and it is further

ORDERED, that any judgment of possession and warrant of eviction previously issued against any respondent in this proceeding are vacated.

ENTER:

DATED: August 21, 2026

HON. DERREK T. THOMAS

CITY COURT JUDGE

Derrek T. Thomas, J.