JOHN v. JOHN (2023)

ORDERED that the final judgment is affirmed, without costs.

Petitioner commenced this unlawful entry and detainer proceeding (see RPAPL 713 [10]) by order to show cause in lieu of a notice of petition (see CPLR 403 [d]) against respondent, his mother, seeking to be restored to the apartment in which he had previously resided with respondent. After a nonjury trial, the City Court dismissed the petition, finding that petitioner did not have a remedy available in a summary proceeding due to the parties’ familial relationship.

“[T]here is no ‘familial exception’ bar to the maintenance of a summary proceeding” (Heckman v Heckman, 55 Misc 3d 86, 90 [App Term, 2d Dept, 9th & 10th Jud Dists 2017]; see Great Jones St. Realty Corp. v Chimsanthia, 74 Misc 3d 126[A], 2022 NY Slip Op 50035[U] [App Term, 1st Dept 2022]; Readick v Green, 73 Misc 3d 132[A], 2021 NY Slip Op 50973[U] [App Term, 1st Dept 2021]). However, contrary to petitioner's arguments, the petition was properly dismissed, albeit upon a different ground. Upon a review of the record, we find that petitioner was, at most, a licensee, and not a tenant, as neither party testified to any agreement regarding petitioner's occupancy, including the term or any rent. A licensee cannot maintain an unlawful entry and detainer proceeding (see Li Jen Yao v Steele, 79 Misc 3d 131[A], 2023 NY Slip Op 50788[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2023]; Qian “Lily” Zhu v Xiao “Joy” Hong Li, 70 Misc 3d 139[A], 2021 NY Slip Op 50089[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]; Andrews v Acacia Network, 59 Misc 3d 10 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]).

Accordingly, the final judgment is affirmed.

DRISCOLL, J.P., McCORMACK and WALSH, JJ., concur.