Beulah Sherland CHAMBERS, Petitioner, v. Denise SHERLAND & Cavan Sherland, Respondent(s).
Recitation, as required by C.P.L.R. § 2219(a), of the papers considered in review of this motion.
Notice of Motion and Affidavits 1 (Exhibits A-C)
Order to Show Cause and Affidavits Annexed
Answering Affidavits 2 (Exhibit A-C)
Replying Affirmation 3
After oral argument and upon the foregoing cited papers, the decision and order on this motion is as follows:
BACKGROUND AND PROCEDURAL POSTURE
Beulah Sherland Chambers, the petitioner in this proceeding, (“Petitioner”), commenced this proceeding against Denise Sherland and Cavan Sherland, the respondents in this proceeding, (“Respondents”), seeking possession of the premises at 3811 White Plains Road, 2nd Floor, Bronx, NY 10467, (“premises”), alleging Respondents are month to month tenants whose tenancy has been terminated by a “Thirty Day Notice.” Respondent, Denise Sherland, now moves for dismissal pursuant to CPLR § 3211(a)(7).
Respondent moves for dismissal arguing the proceeding cannot be maintained because Respondent 1 is a family member of the Petitioner, (“familial relationship exception”). Although Petitioner herein is related to the Respondent, she avers to commencing this proceeding in her capacity as Administrator of the Estate of Easton Sherland, the deceased owner of the subject premises. Placing aside whether the parties to this matter are legally “family,” this court finds there is no familial relationship exception to the maintenance of a summary proceeding in the absence of a legal support obligation. (Heckman v. Heckman, 55 Misc 3d 86, 89-90, 50 NYS3d 793 [App Term, 2nd Dept 2017]; Stanislaus v. Stanislaus, 61 Misc 3d 1213(A), 2018 NY Slip Op 51489(U) [Dist Ct, Nassau County 2018] (a holdover proceeding may be commenced in this family situation because there are no issues involving support); but cf. Morris v. Morris, 63 Misc 3d 453, 95 NYS3d 724 [Civ Ct, Bronx County 2018]).
Respondent's reliance on Rosenstiel v. Rosenstiel, (20 AD2d 71, 245 NYS2d 395 [1st Dept 1963]), is misplaced. In Rosenstiel, it was clear a “husband could not evict a wife whose right as such have not been annulled or modified by any court decree or special agreement.” (id, 20 AD2d at 73). Here, no support obligation or similar obligation is alleged, even as to between the deceased owner and Respondent.
Notwithstanding the arguments presented, the court further finds the familial relationship exception theory has no bearing on this matter. Petitioner has commenced what is commonly referred to as a “30-day, no grounds” holdover. In other words, Petitioner alleges a prior landlord-tenant relationship, no rent regulation protections, and that Respondent is now a month to month tenant whose tenancy has been terminated by a 30-day notice. (See RPAPL 232). The petition alleges monthly rent of $2000 has not been paid for twenty-two months.2 Respondent denies paying rent while acknowledging contributing $2000 monthly to household expenses.3
Respondent's motion to dismiss pursuant to CPLR § 3211(a)(7), therefore, must be denied as the facts alleged in the pleadings fit within a cognizable legal theory. (Leon v. Martinez, 84 NY2d 3, 87-88, 614 NYS2d 972 ). Whether the acknowledged $2000 monthly payments were for rent [pursuant to an oral or written lease], or for something else is an issue for trial. (See Xinyang Yu v. Zhan, 62 Misc 3d 1202(A), 2018 NY Slip Op 51851(U) [Dist Ct, Nassau County 2018]).
Based on the foregoing, the motion to dismiss the proceeding is denied in all respects. Respondent's application to file an Answer is granted and Respondent is directed to serve an file an Answer by June 7, 2019.4 The matter is adjourned to June 21, 2019 at 9:30 a.m., Part F, Room 320 for settlement or trial.
1. Only Denise Sherland has appeared. She is represented by counsel.
2. Par. 4 of petition and par. 5 of Petitioner's April 22, 2019 affidavit.
3. Par. 8 of Respondent's April 15, 2019 affidavit.
4. See RPAPL § 743
Shorab Ibrahim, J.
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