Ellen Field, Petitioner(s) v. ROBERT FRANK (2026)

Recitation, as required by CPLR 2219(a): The following e-filed documents, listed by NYSCEF document number (Motion 001-002), 10-33, were read on this motion to dismiss and cross-motion for judgment. After argument, upon the foregoing cited papers, the motion is decided as follows:

Petitioner, the tenant of record at the premises located at 126 Palmetto Street, 2nd Floor, Brooklyn, New York 11221, commenced this RPAPL 713 proceeding, pursuant to a 10-day notice to quit, seeking a judgment of possession against respondents Yalice Pinto and Robert Frank.

Respondent Pinto now moves to dismiss the petition pursuant to CPLR 3211(a)(1) and (a)(7), arguing, among other things, that her monthly rent payments, including some paid directly to the owner of the property, created a landlord-tenant relationship which cannot be terminated through a licensee proceeding under RPAPL 713. Further, petitioner was required to serve the appropriate statutory predicate notices pursuant to RPL 232-a and 226-c, rather than a ten-day notice to quit. Petitioner opposes respondent's motion to dismiss and cross-moves for summary judgment, arguing, among other things, that respondent is a licensee as she lacks exclusive possession of the premises and that the payment of money does not convert a license into a lease.

The essential facts are not in dispute. Most of them are gleaned from petitioner's affidavit attached to her cross-motion, which was not contested by a rival affidavit of personal knowledge, and which is entirely consistent with the respondent's affidavit attached to her motion to dismiss. Petitioner, Ellen Field, a social worker undergoing ongoing cancer treatment, has been the tenant of the premises since April 2019. She had a longstanding personal relationship with respondent Yalice Pinto. In February 2022, during the COVID-19 pandemic, Pinto—who was then living upstate but was required to attend work and school in Brooklyn—began staying with Field several nights per week with the landlord's permission. The arrangement was intended to be temporary, and Pinto agreed to contribute the $300 increase in rent imposed by the landlord due to her occupancy.

In mid-2022, Pinto began residing at the premises full-time while completing her studies, with the understanding that she would leave after graduating. Later, in November 2022, respondent Robert Frank, Pinto's boyfriend, unexpectedly arrived and requested to stay after experiencing personal and financial difficulties. Field agreed, again with the landlord's consent, resulting in an additional $100 rent increase, which Pinto paid. Although the parties intended that respondents would vacate upon Pinto's graduation in 2023, upon graduating and starting to work, Pinto was laid off, and both respondents delayed relocating.

Throughout their stay, respondents slept in a curtained-off area within the kitchen alcove, and their belongings filled common spaces. Over time, the living arrangement became increasingly strained and at times hostile. Throughout 2025, Field repeatedly requested that respondents vacate, including through emails and text communications, emphasizing that their occupancy had always been temporary. Respondents declined to commit to a move-out date, citing financial constraints. After continued refusal, Field served a 10-day notice to quit and commenced a licensee holdover proceeding. In January 2026, Respondent Frank vacated the premises but Pinto remained.

"[T]he test to distinguish a lease from other rights or interests in real property is whether it is the manifest intent of the parties, gleaned from a consideration of the entire agreement involved, that exclusive control and possession, subject to reserved rights, of specified space of real property for a specified term have been granted" (Robert F. Dolan, Rasch's Landlord and Tenant—Summary Proceedings § 4:1 [5th ed.] [emphasis added]). "No particular words are necessary to constitute a lease, where it appears that it was the intention of one party to dispossess himself of the premises and of the other to enter and occupy as the former himself had the right to do" (Canton Steel Ceiling Co. v Duffy Malt Whisky Co., 200 AD 306, 308 [1922] [internal quotation marks omitted]; see also Potter v New York, O. & W. Ry. Co., 233 AD 578 [1931] aff'd 261 NY 489 [1933]).

The court agrees with petitioner that the respondents in this case are licensees. The premises is a one-bedroom apartment in which respondents never had their own private bedroom. Instead, they slept in a curtained-off portion of the living room/kitchen. This arrangement did not provide respondents with exclusive access or possession to any area of the premises and was instead a makeshift arrangment for what was clearly intended to be a much shorter stay than the one which ensued (see 520 E. 81st St. Assocs. v Roughton-Hester, 157 AD2d 199, 202 [1990] [finding there was no sublease where the roommate/occupant slept on a bed in the tenant's living room]; cf. Diamond v Menasche, 141 Misc 2d 899 [Civ Ct, New York County 1988]). Additionally, petitioner did not benefit financially from respondents' occupancy, as is generally the case when parties intend to enter a roommate agreement. Instead, in seeking to help her friend, she only asked respondents to cover the additional amount the landlord would charge the tenant for permitting the additional occupant/s to the premises. As to the correct predicate notice, while in a RPAPL 711 proceeding the length of the occupancy, over two years, would entitle respondents to a longer notice period, in a licensee RPAPL 713 proceeding, the length of the occupancy cuts the other way, indicating how long overdue it is for respondents to vacate the premises.

As to respondent's argument that her payment of rent directly to the landlord at certain points during her stay afforded her tenancy rights, an "occupant's payment of rent, in and of itself, does not create a tenancy where none was contemplated" (Bayridge Air Rts., Inc. v Parkhalyuk, 87 Misc 3d 17, 20 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2025); see also Har Holding Co. v Feinberg, 182 Misc 2d 180 [App Term 1999], aff'd 276 AD2d 423 [2000]).

The court has considered respondents' remaining contentions and finds them to be without merit.

As there are no triable material issues of fact, it is incumbent upon a court, in the interests of judicial economy, to grant summary judgment (Andre v Pomeroy, 35 NY2d 557 [1980]).

Accordingly, it is

ORDERED that respondent's motion to dismiss is denied; and it is further

ORDERED that petitioner's motion for summary judgment is granted, and petitioner is awarded a judgment of possession against the respondents.

Warrant of eviction to issue forthwith and execution of the warrant of eviction is stayed 10 days. The earliest eviction date is April 9, 2026.

This constitutes the decision and order of this Court

Date: March 30, 2026

Hon. Michael A. Faleck

Housing Court Judge

Michael A. Faleck, J.