DROST v. HOOKEY (2009)

 Undisputed Facts

The undisputed relevant facts presented are that Robert Drost, the petitioner, is the sole deeded title holder of the real property located at 43 Louisa Court, Northport, New York. Until recently, the petitioner resided there with his ex-girlfriend, the respondent, Kim Hookey, for in excess of three years.   Prior to moving in together the respondent individually owned and resided in her own separate house.   Contemporaneously with the petitioner's move-in invitation, the respondent transferred a one-half interest in her house to him in consideration of $25,000 which was utilized to cure her mortgage arrears.   The petitioner recently moved out of the Louisa Court premises alleging the respondent has a medically related affliction.   Said condition has apparently prevented the respondent from appearing in this action other than by counsel.

 Issues Presented

May a co-habitating former boyfriend dispossess his girlfriend of three years from real property, titled only in his name, via a summary proceeding pursuant to the provisions of New York RPAPL Sec. 713(7)?

Secondly, if such a girlfriend sold the boyfriend a one-half interest in a second residence as part of the cohabitation arrangement;  is she a “licensee”, “tenant at will” or something else?

 Discussion

 Tenant at Will?

 The petitioner has proceeded under Section 713(7) of the New York RPAPL which provides that he may dispossess a licensee after giving a 10 day notice to quit.   The respondent girlfriend counters that the 10 day notice to quit is inapplicable as she is not a licensee, but rather a tenant at will, requiring a 30 day notice to quit.   See R.P.L. Sec. 228.

Despite the frequency that the “cohabiting boyfriend/girlfriend” issue is presented in this state's landlord-tenant courts, “the legal status of a paramour with respect to continued occupancy ․ after love's ardor has cooled”, was only first construed via written decision in 1987.  Minors v. Tyler, 137 Misc.2d 505, 521 N.Y.S.2d 380 (Civ. Ct. N.Y. 1987).   As of this date, no Appellate Court has directly addressed the paramour licensee issue, although a plethora of lower Courts have written divergent opinions on the subject, premised upon First, Second and Fourth Department Appellate Division decisions construing the status of a “wife” as a licensee.

 The threshold dispositive issue requires the Court to address the girlfriend's argument that her legal status is that of a “tenant at will” (not a licensee) and as such is entitled to the enhanced 30 day notice protections afforded landlord/tenant relationships ascribed under New York RPAPL Sec. 711.  R.P.L. Sec. 228.   Interestingly, the terms “tenant at will” and “licensee” are not defined by statute in New York, and as such the distinction between them is left to the common law.   See Larned v. Hudson, 60 N.Y. 102 (N.Y. 1875).   The generic common law definitions of these two concepts do tend to blur and involve common concepts of temporary permission to occupy premises for an undetermined time period.   See generally, Fisher v. Queens Park Realty Co., 41 A.D.2d 547, 339 N.Y.S.2d 642 (N.Y.A.D. 2d Dep't.1973).   However, synthesized down to its most basic common denominator, a “tenant at will” recognizes a landlord tenant relationship and is granted exclusive possession of a designated space while a “licensee” acknowledges an absence of a landlord tenant relationship and receives only unexclusive “use an occupancy” of a premises.   See, American Jewish Theatre, Inc., v. Roundabout Theatre Co., Inc. 203 A.D.2d 155, 610 N.Y.S.2d 256 (N.Y.A.D. 1st Dep't.1994) citing to Feder v. Caliquira, 8 N.Y.2d 400, 208 N.Y.S.2d 970, 171 N.E.2d 316 (N.Y. 1960).   See also dicta, Reynolds v. Van Beuren, 155 N.Y. 120, 49 N.E. 763 (N.Y. 1898).   N.Y. Jur.2d § 214.

The factual situation at hand evidences no indication of a landlord tenant relationship.   The girlfriend was granted permission to utilize the entirety of the residence.   That grant did not include “exclusive dominion and control over a specifically identified part of the premises” and as such is recognized to constitute a license pursuant to provision of Sec. 713(7).   Federation of Organizations, Inc. v. Bauer, 6 Misc.3d 10, 788 N.Y.S.2d 806 (9th & 10th Dists. App. Term, 2nd Dep't. 2004).   See also, City Enterprises Ltd. v. Posemsky, 184 Misc.2d 287, 708 N.Y.S.2d 230 (11th Dist. App. Term 2d Dep't. 2000).   In such a situation, the respondent is not a “tenant at will”, and is not entitled to a 30 day notice to quit.

 Licensee?

 Statutes Change the Common Law

Historically, non-married adults who shared the non-exclusive confines of a home and were provided with board maintained the legal status of a “lodger”.   See, People v. Hyland, 19 Misc.3d 1114(A), 2008 WL 918284 (Suff. Co. Dist. Ct. 2008).   A lodger did not maintain a landlord tenant relationship as the owner did not surrender dominion over the premises to him.   See, Ashton v. Margolies, 72 Misc. 70, 129 N.Y.S. 617 (App. Term 1911);  Schreiber v. Goldsmith, 35 Misc. 45, 70 N.Y.S. 236 (App. Term 1901);  Rasch's Landlord & Tenant (4th ed. 1998) § 4:2 pg. 173.   Prior to the enactment of RPAPL Secs. 711-713 predecessor statutes (C.P.A. 1410-1426) a lodger could not be dispossessed via a summary proceeding which was limited to landlord tenant relationships.   Lodgers could only be formally removed via a common law “action in ejectment”.   See Benjamin v. Benjamin, 5 N.Y. 383 (N.Y. 1851);  Mathews v. Mathews, 2 N.Y.S. 121 (N.Y.A.D. 3d Dep't.1888).

 In response to changing times and increased societal demands, the state legislature, in 1920, created a bifurcated statutory scheme within the Civil Practice Act which allowed for the summary dispossession of both landlord-tenant relationship and non landlord-tenant relationship (Art. 83 C.P.A. Sec. 1411) real property occupiers.   The legislature expanded the non-landlord relationships in 1951 to expressly include licensees.  Rosenstiel v. Rosenstiel, 20 A.D.2d 71, 245 N.Y.S.2d 395(N.Y.A.D. 2nd Dep't.1963) citing to Chapter 27 Laws of 1951.   It is this Court's opinion that the legislature intended the expansion of the summary remedy to be all encompassing and that Sec. 713(7) and its predecessor C.P.A. Sec. 1411(8) was the catch all provision designed to include all non landlord-tenant occupiers of real property who were not otherwise expressly designated.   Such a construction would explain why the statute itself is silent as to any limitations envisioned by the legislature which would change the common law definition of “licensee”.   It is noted that statutes arising after creation of the common law are held to abrogate it only to the extent of the “clear import of the language used” and only to the extent the “statute absolutely requires”, New York Statutes, Sec. 301(b).  See also, Bertles v. Nunan, 92 N.Y. 152 (N.Y. 1883).   The statute's derogation of the common law must be strictly construed.  Dollar Dry Dock Bank v. Piping Rock Builders, Inc., 181 A.D.2d 709, 581 N.Y.S.2d 361 (N.Y.A.D. 2nd Dep't.1992).   In order for a statute to change the common law, the legislative intent behind the statute must clearly have the purpose of doing so.   See, Dean v. Metropolitan El Ry. Co., 119 N.Y. 540, 23 N.E. 1054 (N.Y. 1890);  Bose v. United Employment Agencies, 200 Misc. 176, 102 N.Y.S.2d 1012 (N.Y. Civ.Ct.1951).   The Fourth Department Appellate Division has adopted this broad common law definition and has expressly determined that even a “wife” is a licensee capable of being removed from the marital home under a RPAPL 713(7) proceeding unless a summary eviction would be in derogation of her rights under the Domestic Relations Law. Halaby v. Halaby 44 A.D.2d 495, 355 N.Y.S.2d 671 (N.Y.A.D. 4th Dep't.1974).

 Familial Relationship Exceptions

Premised upon a finding that a girlfriend meets the common law definition of a licensee, it would be logical to conclude that Sec. 713(7) is the appropriate summary statutory mechanism to dispossess her.   Confusedly, the aforementioned Tyler Court and its progeny created a “familial relationship” exception to the common law definition of licensee, which had broad ramifications in limiting the use of summary proceedings to dispossess persons outside of a landlord-tenant relationship.¹

This familial relationship exception initially stemmed from the Appellate Division First Department's decision in Rosenstiel v. Rosenstiel, 20 A.D.2d 71, 245 N.Y.S.2d 395 (N.Y.A.D. 1st Dep't.1963) which held that a husband cannot by means of summary proceedings evict his wife from the marital home, as long as the marriage relationship is unabridged by a Court of competent jurisdiction or by a valid agreement.   Rosenstiel relied upon the premise that the legislature intended to exempt wives from the common law definition as it removed “spouse remaining on premises after separation or divorce” from the original proposed bill and as a result of the affirmative enactment of mandated support statutes in the Domestic Relations Law. The Rosenstiel holding was expanded by New York City Courts to cover domestic partners in reliance upon Braschi v. Stahl, 74 N.Y.2d 201, 544 N.Y.S.2d 784, 543 N.E.2d 49 (N.Y. 1989) which held that a paramour was a “family member” of his partner as envisioned by New York City's rent control laws, and as such, protected from eviction due to his occupy succession rights.   Thereafter, this expansive and somewhat subjective definition of family lead to an ever evolving class constituting the “familial relationship” licensee exception, which presently includes a girlfriend who had child of petitioner, grandchildren, adult children, stepchildren, and in-laws after the death or divorce of a spouse.   See, Lally v. Fasano, 23 Misc.3d 938, 875 N.Y.S.2d 750 (Dist. Ct. Nassau Co.2009) for a good historical synopsis.

 Family Case by Case Review v. Statutory Opt-out Objective Test

Lower Courts outside the city of New York somewhat acquiesed to the existence of a “familial relationship” licensee exception but balked at the idea of a “blanket assertion that all family members will be exempt from licensee status”.  Lally v. Fasano, 23 Misc.3d 938, 875 N.Y.S.2d 750 (Dist. Ct. Nassau Co.2009).   In an attempt to limit the scope of the licensee exception, a “case by case” test was advanced whereby each Court must examine whether the family members lived together under one roof, were financially and socially dependent and whether a legal duty of support existed.   Utilizing this co-dependency test, it was held that a domestic partner could evict a former girlfriend who was the mother of his child pursuant to Sec. 713(7).   See, Blake v. Stradford, 188 Misc.2d 347, 725 N.Y.S.2d 189 (Nassau Co. Dist. Ct.2001).

 While the result of the Lally and Blake holdings appears correct, this Court declines to adopt the “case by case” co-dependency test. A close reading of the Second Department's Rosenstiel precedent reveals a simpler more objective licensee exemption test.   Rosenstiel relied upon the premise that the legislature intended to exempt wives from the common law definition as a result of the affirmative enactment of mandated support and marital distribution statutes contained in the Domestic Relations Law. Similarly, the common thread running through the Court of Appeals Braschi decision is not the common law definition of family, but rather the statutory protections flowing from New York's rent control apartment succession laws.   The Fourth Department Appellate Division in Halaby citing to Tausik v. Tausik, 11 A.D.2d 144, 202 N.Y.S.2d 82 (N.Y.A.D. 1st Dep't.1960) aff'd 9 N.Y.2d 664, 212 N.Y.S.2d 76, 173 N.E.2d 51 (N.Y. 1961), also made its Sec. 713(7) licensee determination premised upon a finding that prior to the initiation of the RPAPL 713(7) proceeding, the husband's support obligations had already been determined by the Family Court.   Thus, the husband was not circumventing his obligations by using the 713(7) summary proceeding.   The Court disregarded any arguments that licensee status hinged upon the definition of “family”.   In all these instances, the common law was modified via express statutory amendment.   It is submitted herein, that Sec. 713(7) includes all common law licensees except those who can claim an “opt-out” status by virtue of inclusion in a legislative vehicle which grants them greater rights than those of a licensee.²  “Mere co-habitation without marriage does not give rise to property or financial rights which attend the marriage relationship”.  Morone v. Morone, 50 N.Y.2d 481, 429 N.Y.S.2d 592, 413 N.E.2d 1154 (N.Y. 1980).   It is therefore the burden of the respondent paramour to identify her statutory entitlement to opt-out of the common law licensee definition.   See generally, Eckles v. Sealy, N.Y.L.J. 4-17-02, pg. 27 (col. 6).

In the instant proceeding, the respondent advances no argument citing to alternative statutory entitlement to greater dispossession protections other than those provided by Sec. 713(7).   As such, she meets the common law definition of licensee and is subject to a Sec. 713(7) summary eviction.   The Court is aware of the respondent's factual assertion via the argument of counsel that she granted the petitioner a one-half interest in her house, possibly in consideration of her co-habiting with the petitioner.   Assuming such a defense was asserted in an answer to the petition, such an arraignment might establish a constructive trust or joint venture/partnership which could be an affirmative defense to a licensee proceeding.   See generally, Padilla v. Padilla, 164 Misc.2d 740, 626 N.Y.S.2d 656 (N.Y. Civ.Ct.1995) citing to Minors v. Tyler, cite, supra.   However, the respondent's failure to appear and testify leaves the Court an insufficient record to consider such a defense.

Accordingly, the Court finds that the respondent is a Sec. 713(7) licensee and that she receive the appropriate ten (10) day notice of termination of her licensee to occupy the premises located at 43 Louisa Drive, Northport, New York. The petitioner may submit a judgment of possession and a warrant of eviction, enforcement of which shall be stayed until June 30, 2009.

FOOTNOTES

1.   A familial relationship exception to the licensee definition would also bar the use of summary proceedings to remove adult children from their elderly parent's homes.   This everyday situation in landlord tenant Court could now only be addressed via a Supreme Court action in ejectment which the 4th Department Halaby Court described as an inadequate remedy.

2.   This is consistent with this Court's ruling in Curtis Jackson (50 Cent) v. Shaniqua Tompkins, HULT 112-08, decision April 3, 2008, wherein it was determined that girlfriend respondent was a 713(7) licensee as support payments, inclusive of a housing allowance were current.   This statutory “opt-out” test also allows for parents and grandparents to dispossess adult children/family members as licensee via a summary proceeding.

C. STEPHEN HACKELING, J.