NY - BULLYING AT SCHOOL IS ACTIONABLE

JA v. City of New York, 2026 NY Slip Op 2084 - NY: Appellate Div., 2nd Dept. 2026:

"VOUTSINAS, J.

Appeal by the plaintiffs, in an action to recover damages for personal injuries, etc., from an order of the Supreme Court (Kevin J. Kerrigan, J.), dated August 1, 2023, and entered in Queens County. The order, insofar as appealed from, granted that branch of the motion of the defendants City of New York, New York City Department of Education, and Catherine and Count Basie Middle School 72 which was for summary judgment dismissing the complaint insofar as asserted against the defendants New York City Department of Education and Catherine and Count Basie Middle School 72.

This appeal concerns whether the defendants New York City Department of Education (hereinafter DOE) and Catherine and Count Basie Middle School 72 (hereinafter the school) demonstrated, prima facie, that they did not have adequate notice of the alleged verbal and physical harassment and physical assaults that the infant plaintiff, J.A., a student at the school, was being subjected to or that the steps these defendants took to supervise J.A. and protect him from harm were adequate. We conclude that the DOE and the school (hereinafter together the DOE defendants) failed to establish, as a matter of law, that they did not have sufficient notice of the harassment and assaults or that they took adequate steps to properly supervise and protect J.A. We also conclude that because of the continuing wrong doctrine, the notice of claim served by the plaintiffs was timely with respect to all of the allegations.

I. Factual and Procedural Background

The instant matter presents a case of harassment and assault of a student by other students at his school. J.A. allegedly was bullied by his fellow students throughout the 2017-2018 school year, while a student at a public middle school located in Queens. The incidents began in October 2017 and continued through May 2018. J.A. allegedly was repeatedly verbally and physically harassed and physically assaulted by other students. On October 6, 2017, while under the supervision of the DOE defendants, a classmate identified as N. punched J.A. in the head and face during recess. On February 7, 2018, another classmate, identified as R., called J.A. a racial slur, kicked him, and threatened to jump him if he told a teacher. On March 6, 2018, J.A. was at a nearby store off school grounds when another classmate, identified as A., pushed J.A. to the ground. On April 13, 2018, another classmate, identified as O., threw a crate of books at J.A.'s head and then punched him on the left and right sides of his face. On May 21, 2018, J.A. was physically assaulted in a classroom, injuring his left eye. As a result of these incidents, J.A. suffered injuries to both of his eyes, his head, his face, and his teeth.

On May 25, 2018, J.A., through his mother, filed a notice of claim encompassing all of these incidents, alleging that the defendants provided negligent supervision of J.A. On January 3, 2019, J.A., by his mother, and his mother (hereinafter the plaintiff mother) suing individually, commenced this action against the City, the DOE defendants, and another defendant, alleging, inter alia, negligent supervision.

J.A. testified at his deposition about the incidents with his classmates. In describing the physical assault by N., J.A. stated that he was sitting on a bench when he was punched in the head and face. When J.A. came to his senses after blacking out, he had ringing in his ears, had blurry vision, and was spitting blood. As to the physical assault by R., R. called J.A. a racial slur, then R. got out of his seat and kicked J.A. When J.A. told a teacher about the incident with R., the teacher seemed to dismiss J.A.'s report, stating that she "could not deal with crazy." Regarding the incident during which O. threw a crate of books at J.A.'s head and punched him, J.A. testified that he and O. did not say anything to one another prior to the crate being thrown. After that incident, J.A. went to the nurse. The nurse contacted J.A.'s parents, who picked him up from the school. J.A. did not speak to any teachers or school administrators about the incident prior to being picked up. Concerning the incident on May 21, 2018, in which his left eye was injured, J.A. had no recollection of what happened, including who hit him. J.A. testified that N., O., and the other classmates who harassed him were all friends who "hung out" together.

The plaintiff mother testified extensively at her deposition concerning the school's response to the verbal and physical harassment of J.A., including additional incidents. She testified that following many of the incidents, she had to initiate contact with school administrators to learn what had happened, and she was not otherwise informed of the incidents. The plaintiff mother testified that following the incident with O., during which the crate of books was thrown at J.A., she went to the school's office to see its principal, Omotayo Cineus. Initially, Cineus did not want to see the plaintiff mother, but she refused to leave until Cineus spoke to her.

The plaintiff mother further testified that following the incident with N., she left numerous messages with Cineus and Thompson Young, the school's former dean of students. Eventually, a meeting was held with Cineus, three or four teachers, J.A., the plaintiff mother, N., and N.'s mother "to address the situation and prevent anything further from happening." The plaintiff mother also testified that the school nurse called to inform the plaintiff mother that another student had spat on J.A. The plaintiff mother further testified that she was informed by Young that J.A. was spat on accidentally. However, the plaintiff mother testified that J.A. reported that he was spat on three days in a row by the same student. Moreover, that student, prior to spitting on J.A. again, had called him a "bombing nigger" and a "terrorist." The plaintiff mother could not recall the student's name. She testified that she had contacted the school about these additional spitting incidents and left messages, but she did not receive a call back. A few days later, while the plaintiff mother was leaving the school after trying to meet with Cineus or Young about the spitting incidents, she was threatened by a female student, who told the plaintiff mother that the female student would put the plaintiff mother in a neck cast.

The plaintiff mother also testified that prior to the incident in February 2018, J.A. was kicked by a different student, identified as T. This kicking incident occurred in math class, while a substitute teacher was out of the classroom, making copies. The plaintiff mother initially contacted the school about the incident but received no reply. She had to ask a teacher about the incident during a standard parent teacher conference a week or two later. The plaintiff mother further testified about an incident during which a student identified as R. had threatened to punch J.A., prior to assaulting him later that day on the way to a school bus, and stated that R.'s threat was heard by a teacher. She testified that there was no meeting at the school following the assault by R.

In addition, the plaintiff mother testified that she learned of the incident in which O. threw the crate of books at J.A. from the school nurse, not administrative staff. J.A. told his mother that prior to O. throwing the crate at him, R. had whispered something to O., who became enraged and threw the crate. The plaintiff mother also described the incident at the store, where A. threw J.A. to the ground. The plaintiff mother testified that it was her understanding that her son's assailants were all friends. In addition, she testified that she repeatedly called and visited a school district superintendent's office to initiate a safety transfer for J.A.

Clevelon Akil, who became the dean of students at the school in January 2018, testified that since she was not the dean at the time of the incident in October 2017, she only became aware of it by reviewing an incident report. Akil testified that in February 2018, she investigated the incident during which R. hit J.A. on the way to the school bus. Akil testified that she spoke with a teacher who was present during that incident, J.A., R., and the plaintiff mother. Akil further testified that she became aware of the prior incidents involving J.A. after reviewing incident reports. Akil testified that despite her knowledge of the assaults on J.A. and the prior incident reports, she did not believe that J.A.'s safety was at risk or that there was a safety issue, describing the occurrences as "incidents [that] happen in middle school constantly." Akil testified that she did not know whether a specific plan was devised for J.A.'s safety and stated that while she believed that J.A. was eventually transferred to a different class, she could not recall when the transfer occurred or if it was related to the incidents.

Cineus testified that, as principal, she was familiar with J.A. She further testified that she remembered the incident during which N. struck J.A. and recalled that, prior to that incident, N. had taken J.A.'s phone from his bag. Cineus stated that following the incident, both J.A.'s and N.'s families were contacted. Cineus also recalled the incidents in February 2018, March 2018, and April 2018, and testified that prior to the incident with O. in April 2018, J.A. allegedly had made a joke about O.'s recently deceased father.

Cineus testified that she met with the plaintiff mother regarding these incidents on only three occasions. Cineus further testified that the school moved J.A. to a different class and provided him with a paraprofessional in response to the concerns of the plaintiff mother. Cineus also permitted J.A. to eat lunch in the school office, and she spoke with the students in his classes about being kind to one another. Cineus, however, could not recall precisely when these actions took place.

Motion for Summary Judgment

In May 2023, the City and the DOE defendants moved for summary judgment, among other things, dismissing the complaint insofar as asserted against the DOE defendants. They contended, inter alia, that the plaintiffs' claims concerning any incidents prior to February 23, 2018, should be dismissed as time-barred because the plaintiff failed to comply with General Municipal Law § 50-e and that the plaintiffs' claims concerning the remaining incidents, sounding in negligent supervision, should be dismissed, because the DOE defendants provided adequate supervision.

The plaintiffs opposed that branch of the motion, contending, among other things, that the DOE defendants were on notice of all of the incidents in the notice of claim and had more than sufficient time to investigate the incidents. The plaintiffs contended that the notice of claim was timely because the repeated incidents fell within the continuing wrong doctrine. The plaintiffs further contended that after the incidents began, the DOE defendants failed to adequately supervise J.A.

In an order dated August 1, 2023, the Supreme Court, inter alia, granted that branch of the motion. The court concluded that the claims concerning incidents that occurred prior to February 24, 2018 (90 days before the notice of claim was filed), were barred by General Municipal Law § 50-e for failure to serve a timely notice of claim. With respect to the plaintiffs' claims premised upon the incident on March 6, 2018, which happened at a store near the school, the court determined that the DOE defendants were not responsible for protecting the plaintiff from incidents that occurred off school grounds. As to the remaining incidents, the court determined that J.A.'s alleged injuries were not a result of lack of supervision. The plaintiffs appeal.

II. Legal Analysis

A. The Timeliness of the Notice of Claim.

A plaintiff commencing an action against a school district must, as a condition precedent, serve a notice of claim upon the school district within 90 days of a cause of action accruing (see Education Law § 3813[2]; General Municipal Law § 50-e). The notice of claim provides a municipal agency, in this case the DOE, "with an opportunity to timely and effectively investigate the claim" (Stiff v. City of New York, 114 AD3d 843, 843). "The test of sufficiency of a Notice of Claim is merely whether it includes information sufficient to enable the [municipality or agency] to investigate" (Brown v. City of New York, 95 NY2d 389, 393 [internal quotation marks omitted]).

This Court holds that the notice of claim was timely because the continuing wrong doctrine applies (see Motta v. Eldred Cent. Sch. Dist., 172 AD3d 1575). As a general rule, the continuing wrong doctrine may be "employed where there is a series of continuing wrongs and serves to toll the running of the limitations period to the date of the commission of the last wrongful act" (Garron v. Bristol House, 162 AD3d 857, 858-859). The continuing wrong doctrine allows a later accrual date of a cause of action "where the harm sustained by the complaining party is not exclusively traced to the day when the original wrong was committed" (Capruso v. Village of Kings Point, 23 NY3d 631, 639 [internal quotation marks omitted]). "The distinction is between a single wrong that has continuous effects and a series of independent wrongs" (York v. York, 235 AD3d 1032, 1034 [internal quotation marks omitted]).

This Court has not previously addressed the question of whether the period within which a notice of claim may be filed is tolled where there is a continuous pattern of harassment and/or unlawful conduct in a school setting and allegedly negligent supervision of a student by school administrators charged with a duty to properly supervise their students. In Motta v. Eldred Cent. Sch. Dist. (172 AD3d 1575, 1576-1577), a case factually similar to this one, the Appellate Division, Third Department, among other things, affirmed the Supreme Court's denial of a motion for summary judgment dismissing claims alleging negligence with respect to any incidents that occurred more than 90 days prior to the filing of a notice of claim. In Motta, the student was continually verbally taunted and harassed by the same group of students, he continually reported those incidents to school administrators, and the school was continuing to take action with regard to the student's complaints when the notice of claim was filed (see id. at 1577). The Motta Court found that "given the continuing nature of the alleged bullying and negligent supervision" and the fact that the defendant "had actual notice of the claim in time to properly investigate and obtain evidence," the notice of claim was timely with respect to all of the alleged incidents (id.).

This Court has, in analogous circumstances, concluded that a continuing violation tolls limitation periods. In Matter of Lozada v. Elmont Hook & Ladder Co. No. 1 (151 AD3d 860, 861), this Court held that the continuing violation doctrine applied to a hostile work environment claim because that claim, by its very nature, was predicated on a series of separate acts that constituted an unlawful discriminatory practice. In so doing, this Court noted that "`[a] continuing violation may be found where there is proof of specific ongoing discriminatory policies or practices, or where specific and related instances of discrimination are permitted by the employer to continue unremedied for so long as to amount to a discriminatory policy or practice'" (id. at 861-862, quoting Clark v. State of New York, 302 AD2d 942, 945).

Similarly, in the context of an employment discrimination action, the Appellate Division, First Department, has held that claims sounding in negligent supervision begin to accrue on the date of the last underlying act (see Pichardo v. New York City Department of Education, 99 AD3d 606, 607).

Schools are obligated to provide students with a safe place to acquire an education. Children, on a daily basis, leave the safety of their homes to attend school, where their parents expect that they will be provided a safe place to grow and learn. While they have physical custody of these children, schools are said to act "in loco parentis," or in place of the parents, and in that role are required to provide the same protection and care for a child that a parent would provide (see e.g. Pratt v. Robinson, 39 NY2d 554).

Here, J.A. was a student with an individualized education plan (hereinafter IEP) who is contending, in essence, that he was subjected to a hostile educational environment through repeated harassment and assaults. The record establishes that the faculty and administration of the school were on notice of the allegations of a continuous pattern of harassment and assaults. The deposition testimony of Akil, Cineus, and the plaintiff mother indicates that the school had notice of every incident, which were recorded in the school's incident reporting system. Moreover, the plaintiff mother testified that she repeatedly contacted the DOE defendants to express her concerns for J.A.'s safety. Under these circumstances, the continuing wrong doctrine applies. The time period for the plaintiffs to file their notice of claim regarding all of the incidents began to run when the last incident occurred in May 2018. Furthermore, as discussed more fully below, questions of fact exist concerning whether the DOE defendants acted appropriately to adequately supervise J.A., given the DOE defendants' notice and knowledge. In addition, because the DOE defendants allegedly were aware of a continuing pattern of harassment, they had ample time to properly investigate the plaintiffs' claims and to obtain evidence. Accordingly, the Supreme Court erroneously concluded that the claims based on incidents that occurred outside the 90-day period prior to the filing of the notice of claim were time-barred (see Motta v. Eldred Cent. Sch. Dist., 172 AD3d 1575).

B. The DOE Defendants' Supervision of J.A.

As a threshold matter, to the extent that the plaintiffs allege damages for any injuries that occurred off school grounds, including any injuries resulting from the incident on March 6, 2018, which occurred at a nearby store, J.A. was no longer in the DOE defendants' custody and/or under their control during that incident. Accordingly, the DOE defendants cannot be liable for injuries arising from alleged incidents which occurred off school grounds (see Donofrio v. Rockville Ctr. Union Free Sch. Dist., 149 AD3d 805).

1. Notice to the DOE Defendants

"Schools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision" (Mirand v. City of New York, 84 NY2d 44, 49). "`[I]n determining whether the duty to provide adequate supervision has been breached in the context of injuries caused by the acts of fellow students, it must be established that school authorities had sufficiently specific knowledge or notice of the dangerous conduct which caused injury; that is, that the third-party acts could reasonably be anticipated'" (A.P. v. John W. Lavelle Preparatory Charter Sch., 228 AD3d 138, 150, quoting Mirand v. City of New York, 84 NY2d at 49). "Actual or constructive notice to the school of prior similar conduct is generally required, and injury caused by the `impulsive, unanticipated act of a fellow student ordinarily will not give rise to a finding of negligence absent proof of prior conduct that would have put a reasonable person on notice to protect against the injury-causing act'" (J.S. v. Ramapo Cent. Sch. Dist., 205 AD3d 947, 948, quoting Mirand v. City of New York, 84 NY2d at 48). "To find that a lack of adequate supervision is a proximate cause of a student's injury, it must be established that school authorities had sufficiently specific knowledge or notice of the dangerous conduct which causes the injury" (B.J. v. Board of Educ. of the City of N.Y., 172 AD3d 693, 694 [alteration and internal quotation marks omitted]).

Here, viewing the evidence in the light most favorable to the plaintiffs as the non-moving parties (see Qureschi v. Gleason, 231 AD3d 878, 879), the DOE defendants failed to establish, prima facie, that they did not have specific knowledge or notice of the dangerous conduct of J.A.'s classmates such that the acts that led to his injuries could not have been reasonably anticipated. As set forth in the discussion of the timeliness of the notice of claim, the DOE defendants had notice of the incidents that targeted J.A. On behalf of these defendants, Akil and Cineus testified that they were aware of the specific incidents wherein J.A. was assaulted and harassed. Moreover, the testimony of the plaintiff mother details the repeated instances when she either contacted school administrators to report incidents herself or was contacted by school employees other than the administrators concerning incidents involving J.A. She also testified that she and Young discussed that the students who were harassing J.A. all belonged to the same group of friends.

The evidence submitted in support of the motion clearly demonstrated that the DOE defendants had actual notice of the prior similar conduct by J.A.'s classmates and the continued verbal and physical harassment of J.A., which gave the DOE defendants an opportunity to take proper measures to protect J.A. while he was attending the school (see J.S. v. Ramapo Cent. Sch. Dist., 205 AD3d at 949; see also Nizen-Jacobellis v. Lindenhurst Union Free Sch. Dist., 191 AD3d 1007). Since the DOE defendants failed to demonstrate their prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against them based on lack of notice, this Court need not consider the sufficiency of the plaintiffs' submission in opposition (see Alvarez v. Prospect Hosp., 68 NY2d 320, 324-325).

2. The Adequate Supervision of J.A.

In examining the question of whether J.A. was adequately supervised, that determination "`depends largely on the circumstances attending the event'" (Sclafani v. Young Adult Inst., Inc., 240 AD3d 816, 817 [internal quotation marks omitted], quoting Mei Kay Chan v. City of Yonkers, 34 AD3d 540, 541). "The adequacy of a school's supervision of its students is generally left to the trier of fact to resolve, as is the question of whether inadequate supervision was the proximate cause of the plaintiff's injury" (id. at 817-818 [internal quotation marks omitted]; see also L.S. v. Massapequa Union Free Sch. Dist., 215 AD3d 708).

Here, viewing the evidence in the light most favorable to the plaintiffs as the non-moving party (see Qureschi v. Gleason, 231 AD3d 878, 879), the DOE defendants failed to establish, prima facie, that they provided adequate supervision to J.A. (see Sclafani v. Young Adult Inst., Inc., 240 AD3d at 818).

The record is replete with allegations of the DOE defendants' indifference to the alleged wrongful actions of J.A.'s classmates. For example, the incident in which J.A. was spat on was described as accidental, and when J.A. attempted to report the incident during which he was kicked in class, a teacher dismissed him by saying that she "could not deal with crazy." The school had knowledge of these repeated incidents, yet Akil, the dean, testified that she did not believe that J.A.'s safety was at risk or that there was a safety issue, describing J.A.'s experiences as incidents that "happen in middle school constantly." There is no indication in the record that any plan was devised for J.A.'s safety. Akil believed that J.A. was transferred to another class, however she could not recall when J.A. was transferred or whether it was related to the incidents. Cineus confirmed that J.A. was moved to another class and also testified that J.A. was provided with a paraprofessional. The record is unclear, though, as to whether the paraprofessional was provided based on J.A.'s IEP or as a result of the harassment and assaults he experienced. Cineus further testified that J.A. was permitted to eat lunch in the school office. However, other than providing J.A. with the paraprofessional and the option to eat lunch in the school office, there is no evidence presented to show what actions the DOE defendants took to protect J.A. Moreover, there is no evidence in the record demonstrating that the DOE defendants consequated the students allegedly harassing J.A. in an effort to stop their pattern of harassing and assaultive behavior, other than Cineus stating that she spoke to all of the students in J.A.'s classes and asked them to be kind to one another.

Under these circumstances, the DOE defendants failed to establish that any lack of supervision on their part was not a proximate cause of J.A.'s injuries (see RT v. Three Village School Central School District, 153 AD3d 747). Significantly, the deposition testimony of the school employees, including regarding their failure to prepare an individual safety plan for J.A., failed to eliminate triable issues of fact concerning whether the DOE defendants took adequate steps to supervise the plaintiff and prevent the incidents that led to J.A.'s injuries (see Sclafani v. Young Adult Institute, Inc., 240 AD3d at 818; J.S. v. Ramapo, 205 AD3d at 949; Nizen-Jacobellis v. Lindenhurst Union Free School District, 191 AD3d at 1008). Instead, the evidence indicates that despite their notice and knowledge, employees of the DOE defendants were indifferent to the harassment that J.A. was enduring, describing the incidents as merely the type that happen constantly at a middle school and testifying that they did not believe J.A.'s safety was at risk.

Given that the DOE defendants failed to demonstrate their prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against them based on a showing that they provided J.A. with adequate supervision, this Court need not consider the sufficiency of the plaintiffs' opposition papers (see Alvarez v. Prospect Hosp., 68 NY2d 320, 324-325).

III. Conclusion

Accordingly, the order is modified, on the law, by deleting the provision thereof granting that branch of the motion of the City and the DOE defendants which was for summary judgment dismissing so much of the complaint as was predicated on alleged incidents which occurred on school grounds, insofar as asserted against the DOE defendants, and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed insofar as appealed from.

BARROS, J.P., CHRISTOPHER and WARHIT, JJ., concur.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the motion of the defendants City of New York, New York City Department of Education, and Catherine and Count Basie Middle School 72 which was for summary judgment dismissing so much of the complaint as was predicated on alleged incidents which occurred on school grounds, insofar as asserted against the defendants New York City Department of Education and Catherine and Count Basie Middle School 72, and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed insofar as appealed from, with costs to the plaintiffs."

NY CHILD CUSTODY & SUPPORT - NOT SUBJECT TO ARBITRATION

The court feels that delegating this duty to a third party is against public policy.

MW v. RR, 2026 NY Slip Op 50278 - NY Sup. Ct. Rock. Co. 2026:

"Parties should generally be permitted to discontinue an action, provided that the discontinuance is filed within the time parameters set forth in CPLR § 3217. However, there are exceptions, particularly where children are involved, and especially when the safety of children is at issue. To this end, any application to discontinue must be evaluated with due regard to the interests of the children, since the state has a legitimate interest in protecting children from abuse or neglect. See generally Irene D. V. Anthony D., 113 Misc 2d 561 (Family Court New York County 1982).

In this action seeking divorce, with a contested custody dispute, the Court finds an issue of first impression, involving the interplay between CPLR § 3217(a), the rights, duties and obligations of an attorney for the child, a temporary order of protection, the parties' right to contract, and the validity of an arbitration agreement. The principal issue is whether this Court should accept a stipulation of discontinuance, contained in an "Agreement to Arbitrate" filed with this Court. In this Agreement, the parties state that they agree to arbitrate not only issues of support, maintenance and equitable distribution, but also issues of custody and visitation. The Court appointed attorney for the child ("AFC") was not a signatory to the arbitration agreement when there is a temporary order of protection in effect protecting the child, and the AFC and the Plaintiff both object to the discontinuance.

For the reasons that follow in this Decision and Order, this Court finds that: (1) because of the Court's function as parens patriae in contested custody matters, (2) because of the existence of a temporary order of protection in favor of the child, and (3) because the attorney for the child objects to the discontinuance, discontinuance of this action should not be permitted even though the parties agreed to same. Additionally, the Court finds that the stipulation does not comply with CPLR §3717.

PRELIMINARY STATEMENT

On October 3, 2025, this Court issued an Order (hereinafter referred to as the "October 2025 Order") which provided, inter alia, that:

WHEREAS, the parties entered into an arbitration agreement dated September 12, 2025, that included a stipulation discontinuing the instant action; and

WHEREAS, the Attorney for the Child was not a signatory of said agreement; and

WHEREAS, an issue as to the validity of the Stipulation of Settlement pursuant to CPLR 3217 has been raised as has the issue of the parties agreeing to arbitrate the issue of Custody and parental access (Goldberg v. Goldberg, 124 AD3d 779) as well as other terms of the agreement; and

IT IS HEREBY ORDERED that all parties and the Attorney for the Child shall submit briefs on the issue of the validity of the agreement simultaneously on October 17, 2025 at 5:00 p.m.

BACKGROUND

This instant matter has a substantial litigation history, much of which will not be repeated herein. However, as for relevant background, the parties were married on June 13, 2020. There is one child of this marriage, to wit: Z., born xx/xx/xxxx. The instant action for divorce and ancillary relief was commenced on February 10, 2023 by the filing of a Summons and Verified Complaint with the Rockland County Clerk on February 10, 2023. The Defendant interposed a Verified Answer on March 3, 2023. A Preliminary Conference was held in this matter on April 4, 2023.

On April 15, 2025, an Administrative Order was issued by the Hon. James P. Murphy, J.S.C., D.C.A.J., assigning the undersigned Justice to hear and determine this matter. On April 28, 2025, this Court issued an Order Appointing Attorney for the Child. On April 28, 2025, this Court issued a Temporary Order of Protection on behalf of the child.^[1] On September 12, 2025, the parties executed the subject Arbitration Agreement ("Agreement") filed with the Court on September 22, 2025. On January 7, 2026 this Court issued a Decision and Order (hereinafter referred to as the "January 2026 Order")^[2] which, inter alia and in sum and substance, denied the Defendant's application seeking the disqualification of the AFC and denied the Defendant's application seeking the appointment of a new AFC. The instant Decision and Order with respect to the October 2025 Order was held in abeyance pending the January 2026 Order.

THE PARTIES' CONTENTIONS

Defendant's Contentions:

The Defendant asserts that a stipulation of discontinuance executed by the parties is binding and terminates the jurisdiction of the Court. She argues that the AFC, while she is the advocate for the child, she is not a procedural party and her signature is not required to effectuate a stipulation of discontinuance. The Defendant alleges that the Court lacks jurisdiction over the instant custody matter following the execution of a valid stipulation of discontinuance, and the parties have a constitutional right to determine the best interests of the child. The Defendant argues that stipulation of discontinuance is binding and enforceable, and that judicial resources should not be expended on matters which have been voluntarily discontinued. The Defendant alleges that the parties freely chose the Rabbi, that there was no fraud, collusion, mistake or accident, especially where the Plaintiff induced the execution of the Agreement. The Defendant alleges that the Agreement, which resolved all issues, included a stipulation of discontinuance, and that the Agreement is signed and notarized by the parties after consultation with counsel of their own choosing.

The Defendant maintains that a stipulation of discontinuance is effective even if it is contained within an agreement signed by the parties. The Defendant alleges that the stipulation of discontinuance is valid and enforceable notwithstanding the validity of the other provisions in the agreement. The Defendant alleges that in the Agreement, the parties included a severability clause which could be used to enforce the remainder of the Agreement. The Defendant alleges that even if the arbitration provision in the Agreement is deemed nonbinding and unenforceable, the severability clause ensures that the stipulation of discontinuance remains in effect. The Defendant argues that allowing a party to challenge the stipulation of discontinuance based on whether the child custody arbitration portion of the agreement would undermine the severability clause to which the parties agreed.

The Defendant further argues that CPLR § 3217(a)(2) applies even when a divorce action in Supreme Court involves child custody matters. The Defendant asserts that the absoluteness of a discontinuance under this section applies in all circumstances. The Defendant claims that the stipulation of discontinuance does not purport to alter or extinguish any independent legal rights of the child. The Defendant argues that there are very limited exceptions to the termination of jurisdiction following a stipulation of discontinuance, such as a Family Court Act Article 10 proceedings. He maintains that in the event that the Court determines that approval to discontinue is required after a voluntary discontinuance, then a formal motion would be required, which would, ostensibly, upend established practice of voluntary discontinuance(s) in matters involving child custody.

The Defendant alleges that the AFC does not represent a party to the divorce. She argues that CPLR § 3217(a)(2) requires that the stipulation of discontinuance be signed by the "attorneys of record for all parties", and the term "parties" refers to the individuals named in the proceeding or have legal standing to assert or defend claims. The Defendant argues that requiring an AFC to sign stipulation(s) of discontinuance would improperly elevate their role beyond statutory or ethical bounds, and alleges that it would give the AFC "unprecedented power" over a personal decision. The Defendant alleges that CPLR § 3217(a)(2) permits a voluntary discontinuance before the matter is submitted to the court or jury, and the matter has not been submitted to the court or jury in this instance. The Defendant finally argues that the parties have a right to discontinue this action and pursue alternative dispute resolution methods.

As to the Court's role and power over the parties' desire to arbitrate, the Defendant argues that while courts have held that their role as parens patriae must not be usurped, such authority extends where the conformation of an arbitration award is disputed, and that the courts cannot stop parties from engaging in alternative dispute resolution methods if they so wish (see Defendant's Brief, pages 14-15). While the Court initially agrees with the generalized notion that courts cannot stop parties from seeking alternative dispute resolution, the Court parts ways with the Defendant based upon the provisions of the Agreement after a review of same.

Plaintiff's Opposition:

The Plaintiff alleges that the Defendant is, in effect, attempting to discontinue this action so that she can immediately thereafter file an action in New York County where her family rents an apartment. The Plaintiff claims that in September 2025, a Rabbi was contacted to assist the parties in resolving their contested issues. The Plaintiff maintains that the Rabbi thereupon presented the parties with the Agreement. The Plaintiff alleges that the Defendant executed the Agreement and filed same on September 22, 2025 alleging that the divorce action was discontinued, but the Plaintiff thereupon objected to the discontinuance. He alleges that the Agreement cannot serve as a stipulation of discontinuance because it was not signed by the attorneys of record in this action. The Plaintiff alleges counsel for the parties did not sign the Agreement, nor did counsel for the parties sign a stipulation of discontinuance. The Plaintiff argues that the rule that counsel must sign any stipulation of discontinuance is not discretionary.

The Plaintiff also argues that agreements to arbitrate custody issues are invalid in New York, which is the state with jurisdiction in this matter. The Plaintiff argues that even if the Agreement served to discontinue the action with respect to the financial issues, it cannot discontinue the action concerning the custody issues because custody issues are not subject to arbitration in New York. The Plaintiff claims that it is irrelevant that New Jersey permits arbitration of custody issues because New Jersey does not have jurisdiction over custody of the child. The Plaintiff alleges that the child has resided in the State of New York for her entire life.

Attorney for the Child's Opposition:

The AFC alleges that once an action has commenced and advanced, CPLR § 3217(b) requires court approval, and that discontinuance is not a matter of right, but lies within the discretion of the Court. The AFC alleges that in family law matters, especially ones involving custody, allegations of abuse, and visitation, discontinuance is not a matter of right, but it lies within the discretion of the Court to protect the best interests of the child. The AFC notes that both she and the Plaintiff object to the discontinuance. The AFC alleges that CPLR § 3217(a) permits discontinuance without an order of the Court, but only prior to issue being joined or, in limited circumstances, where all parties of record consent in writing. The AFC alleges that she must be afforded an opportunity to be heard before a proceeding affecting the child's welfare be discontinued.

The AFC also claims that she is not a signatory to the Agreement and that she did not have an opportunity to review the Agreement prior to the signing thereof. The AFC alleges that the Court must act as parens patraie to do what is best for the child. The AFC argues that a discontinuance would "disintegrate the very protections the Court has already put in place to ensure the child's safety". The AFC alleges that there is an active temporary order of protection in place in her client's favor and the AFC continues to serve by court appointment, reinforcing the need for continued judicial supervision. The AFC maintains that the child's welfare is at issue and the discontinuance would remove safeguards put in place by the Court. The AFC alleges that the Defendant's own filings reinforce why discontinuance would endanger the child's safety, as one day before the signing of the Agreement, the Defendant moved to restore Family Court's order requiring supervision for the Plaintiff. The AFC argues that the Defendant's own conduct in this action underscores that the child's welfare is deeply troubled and "at escalating risk".

DISCUSSION AND ANALYSIS

DISCONTINUANCE

The Agreement, at Paragraph "44", provides:

44. The parties expressly acknowledge that they understand and agree that arbitration before the Arbitrator shall be the exclusive forum for the adjudication of the above listed disputes and as set forth above by agreeing to arbitration they are waiving their rights to other resolution processes, such as court action or other arbitration, and that the parties shall be precluded from bringing suit in court with respect to the disputes listed above, except as to enforce this Agreement. This provision shall be a complete defense to any suit, action or proceeding instituted before any court or other body with respect to the above listed disputes, provided, however, that, notwithstanding this provision, any party may seek interim judicial relief in aid of arbitration, to prevent a violation of this Agreement pending arbitration, or to enforce any arbitration award. If either party violates this provision, the other party shall be entitled to dismissal or injunctive relief regarding such court action or arbitration and recovery of all costs and disbursements, losses, and attorneys' fees related to such other proceeding, if such claim is dismissed, to the extent permitted by law. The Parties further agree to immediately discontinue any and all court actions, if any, relating to the matters discussed in Paragraph 2 of this Agreement and the parties shall immediately execute all documents necessary to complete the foregoing. The parties agree that the court case, if any, is hereby discontinued and all prior orders, decisions, findings and stipulations, if any, no longer have effect. The invalidity of any provision of this Agreement shall not affect the validity of any other provision of this Agreement. In the event that a court of competent jurisdiction determines that any provisions of this Agreement fail to comply with the legal requirements for the compulsory arbitration of the disputes listed above, it is the parties' intention that the court shall equitably reform such provisions to the extent necessary (and only to the extent necessary) to conform the offending provisions to such legal requirements.

(emphasis added).

As a threshold matter, both the Plaintiff and Defendant aver that CPLR § 3217(a) applies. The AFC avers that CPLR § 3217(b) applies. The parties and the AFC are effectively at odds as to the operative provision of CPLR § 3217. The Court therefore finds that it must, first, address the operative provision of CPLR § 3217. CPLR § 3217(a)(2) provides:

(a) Without an order. Any party asserting a claim may discontinue it without an order

* * *

2. by filing with the clerk of the court before the case has been submitted to the court or jury a stipulation in writing signed by the attorneys of record for all parties, provided that no party is an infant, incompetent person for whom a committee has been appointed or conservatee and no person not a party has an interest in the subject matter of the action; or

CPLR § 3217(b) provides:

(b) By Order of Court. Except as provided in subdivision (a), an action shall not be discontinued by a party asserting a claim except upon order of the court and upon terms and conditions, as the court deems proper. After the cause has been submitted to the court or jury to determine the facts the court may not order an action discontinued except upon the stipulation of all parties appearing in the action.

Initially speaking, the AFC argues that since "... issue has long since been joined, discovery completed, witnesses sworn, and the Court has issued material orders ..." (see AFC Brief, page "3"), CPLR § 3217(b) applies.

The Court disagrees with the AFC on an initial basis; the Court finds CPLR § 3217(b) inapposite in the first instance. In Emigrant Bank v. Salimano, the court held that

"... [t]he third stage of a litigation, as relevant to a discontinuance, is the period after the case has been submitted to the court or the jury for a determination of the facts. Once an action or a proceeding has advanced to the point of deliberation and fact-finding, there can be no discontinuance except by leave of court upon such terms and conditions as the court deems proper and a stipulation of all parties appearing in the action ... [t]hus, CPLR § 3217, viewed in its entirety, operates like a seesaw, allowing for discontinuances by mere unilateral notice at the earliest stage of a litigation, while imposing incrementally greater requirements upon the party seeking the discontinuance the farther the litigation progresses.

The statute is easily applied in cases that go to trial. In such instances, the submission of the case to a jury for its findings of fact, or the submission of the case to a court during a bench trial, operates as a bright line separating the discontinuance that may be sought using the pre-deliberative mechanisms of CPLR §§ 3217(a)(2) and (b) from the mechanism of CPLR § 3217(b) which attaches once the deliberative phase begins ..."

Emigrant Bank v. Solimano, 209 AD3d 153 (2d Dept. 2022). While testimony has, in fact, been taken, the trial was never completed and submitted to the Court for a determination of the facts (Emigrant Bank, supra). This matter has not advanced to the point of deliberation and fact-finding. While testimony was taken in Rockland County prior to the assignment to the undersigned, this Court has not, at this juncture, declared a mistrial. It is of no moment that discovery may or may not have been completed, and it is of no moment that "material" orders may have been issued. Matrimonial courts routinely issue material orders pendente lite; but a material pendente lite order does not mean that the case was submitted to the undersigned for fact-finding and deliberation on a final basis. Therefore, the Court finds that, at this point, CPLR § 3217(a) is operative, unless, of course, the Court finds that the parties cannot discontinue pursuant to CPLR § 3217(a). CPLR § 3217(a)(2) clearly provides that a party may discontinue without a court order:

"... by filing with the clerk of the court before the case has been submitted to the court or jury a stipulation in writing signed by the attorneys of record for all parties, provided that no party is an infant ... no person not a party has an interest in the subject matter of the action..."

(emphasis added).

The Defendant argues to the Court that once a stipulation of discontinuance is signed by the parties and filed with the Court, the Court is divested of jurisdiction and it terminates the underlying divorce proceeding. The Court disagrees under the circumstances of this case.

As an initial matter, the Agreement is in derogation of CPLR § 3217(a)(2) inasmuch as it was neither signed by the Plaintiff's counsel nor the Defendant's counsel. The text of CPLR § 3217(a)(2) makes clear that the signatures of counsel are required, and the Agreement is devoid of the signature(s) of counsel for the parties. The text of the statute could have provided that any stipulation of discontinuance be signed just by the parties. It does not. Inasmuch as CPLR § 3217(a)(2) specifically requires the signatures of the attorneys of record for all parties, and inasmuch as the Agreement does not contain the signature of the attorneys of record for all parties, the Agreement fails to comply with CPLR § 3217(a)(2).

The Court also disagrees with the AFC's position that the Agreement which seeks to discontinue the action is invalid because she was not a signatory. A child is not a party to a matrimonial action. The parties to a matrimonial action are the parents. While the Court certainly has to consider, in a contested custody matter, the express wishes of the children as a factor (Silverman v. Silverman, 186 AD3d 123 [2d Dept. 2020]), their wishes are not dispositive. Whether the Court can choose not to honor a stipulation of discontinuance which discontinues a divorce action is a separate issue. In this instance, the Court declines to accept the Agreement as a stipulation of discontinuance.

CPLR § 3217(a)(2) provides this Court with the authority to decline to permit the discontinuance by stipulation. It reads "... provided that ... no person not a party has an interest in the subject matter of the action..." (emphasis added). While a child may not be a party to the action, a child is a person. See generally Matter of Bennett v. Jeffreys, 40 NY2d 543 (1976). The Second Department has made it clear that children have a real and substantial interest in the outcome of contested custody litigation, writing, in part:

"... [s]ubstantively, and more importantly, it cannot be denied that a ... child has a real and substantial interest in the outcome of litigation between the parents ... [i]t seems self-evident that the child is the person most affected by a judicial determination on the fundamental issues of responsibility for, and the environment of, the child's upbringing. To rule otherwise would virtually relegate the child to the status of property, without rights separate and apart from those of the child's parents...."

Matter of Newton v. McFarlane, 174 AD3d 67 (2d Dept. 2019). The Second Department characterized the child's interest in the outcome as "vital". Matter of Newton, 174 AD3d at 75.

A party can argue that an AFC has no right to object to litigants voluntarily electing to discontinue their divorce action. That argument is certainly well-taken. In JM v. RM when discussing the role of an AFC:

"... [i]t is worth summarizing: the AFC is tasked with the weighty responsibilities of zealously advocating for his or her client ... taking an active role in the proceedings ... and consulting and counseling the client ... [i]n addition, the AFC must subject themselves to the ethical requirements applicable to all lawyers ... including the rules of good lawyering and professional responsibility ..."

JM v. RM, 77 Misc 3d 506 (Supreme Court Nassau County 2022). The AFC, once assigned by the Court, is an attorney in the matter who must represent his or her client. She has to advocate for and counsel her client, she has to take an active role in the proceedings, and she must comport herself with ethical obligations imposed upon counsel. The AFC's role in cases is much deeper than just a functional one in representing a client. AFC's develop relationships with their clients and must advocate for them without prejudicing their rights. See generally M.M. v. K.M., 62 Misc 3d 487 (Supreme Court Nassau County 2018).

The Court finds that while the AFC's position on behalf of her client is not dispositive on whether or not parties in a contested custody matter may discontinue an action, her position on behalf of his or her client is entitled to weight and consideration. The degree of weight and consideration depends upon a multiplicity of factors, such as the age and maturity of the child, but also should depend, to some degree, on whether or not there are allegations of domestic violence and/or abuse or neglect in a specific case. Such a logical conclusion is in-line with the ethical rules promulgated to counsel and the Second Department's reasoning in Matter of Newton v. McFarlane, supra. That weight and consideration, however, requires a fact-specific analysis.

In this instance, the child has a clear interest in the outcome of the custody litigation between their parents. The child, through the AFC, objects to the discontinuance of the action. The Court finds that in this contested custody matter where the AFC, on behalf of her client, objects to the discontinuance, the parties cannot simply discontinue as a matter of right, but, rather, they need permission of the Court to discontinue pursuant to CPLR § 3217(b).

In furtherance of the above, not all actions can fit the bill of a "one size fits all" motto. Matrimonial matters are unique (L.F. v. M.F., 78 Misc 3d 810 [Supreme Court Nassau County 2023]; Marcillo v. Hennessy, 46 Misc 3d 1225(A) [Supreme Court New York County 2015]). The Court has a duty to act as parens patriae. (C.M. v. E.M., 82 Misc 3d 198 [Supreme Court Nassau County 2023]; G.P. v. S.S., 78 Misc 3d 1221(A)[Supreme Court Nassau County 2023]; T.H. v. G.M., 81 Misc 3d 1205(A)[Supreme Court Nassau County 2023]). Where custody and visitation are in issue, the court's role as parens patriae must not be usurped Clarence M. V. Martina M., 68 Misc 3d 457 [Supreme Court Kings County 2020]). While children of divorce are still children and the parents are still the parents, it is the court's role in parens patriae to protect the child. Clarence M., 68 Misc 3d at 469.

This Court is charged with protecting children that are the subject of litigation before it and making determinations of what is in the best interests of the child under the totality of the circumstances (Paige v. Paige, 202 AD3d 794 [2d Dept. 2022]). When the Court undertakes its role as parens patriae, it must put itself "... in the position of a wise, affectionate and careful parent..." (Finlay v. Finlay, 240 NY 429 [1925]).

The Court notes that while appointed by the Court, the AFC does not assert any judicial supervision of the child, she represents the child. The only body exercising judicial supervision over this child is the undersigned Justice. The Court finds that the existence of the Temporary Order of Protection, in and of itself, is a basis for the Court to decline to permit the discontinuance of this action at this time. The Temporary Order of Protection is in favor of only the child.^[3] The Temporary Order of Protection is a "general refrain" in favor of the child against the Plaintiff, and directs the Plaintiff to "... refrain from covering the subject child's throat, mouth, or nose that creates an unreasonable risk to the health, safety, or welfare ..." of the subject child. The Court has yet to have a hearing on the underlying petition, so it has yet to determine whether a family offense has been committed. Without an adjudication on the merits of that petition, the Court declines, at this time, to permit the discontinuance of this action. The Court has also considered the fact that the Defendant herself, one day prior to the execution of the Agreement, filed an emergency application with the Court seeking to restore a prior order of the Rockland County Family Court requiring supervised access for the Plaintiff with the child. In that filing, she characterizes the Plaintiff's conduct as "reckless", represents that the child "screams and cries when she goes" to the Plaintiff, refuses to communicate with her about the child's health and mental issues, and characterizes the Plaintiff's conduct as "intentional or grossly negligent". She also claims that the Plaintiff has a "disregard for his child's safety" and that she left the Plaintiff after his "repeated threats" and "domestic violence". She also alleges that the Plaintiff obstructed the child's breathing.

Based upon those sworn allegations, it would be irresponsible and an abrogation of the Court's duty as parens patriae to permit the discontinuance of this action at this juncture. The Court is compelled to find that a discontinuance of this proceeding, while perhaps truly desired by the Plaintiff and Defendant, is not in the best interest of the child, or appropriate to insure the child's protection. Accordingly it is hereby:

ORDERED, that the stipulation of discontinuance, contained within the Arbitration Agreement, be and the same is hereby REJECTED and shall be of no force and effect.

AGREEMENT TO ARBITRATE CUSTODY AND ACCESS

The Agreement, at Paragraph "2", provides:

2. The parties agree to arbitrate certain disputes as provided in this Agreement as follows: All issues that could be raised and adjudicated in court, including pendente lite and temporary and permanent issues, so that matters in arbitration include but are not limited to custody (legal and physical), parenting time, child support and the allocation of child-related expenses, spousal support, division of assets and allocation of debt. These and all other matters between the parties arising out of their marriage and divorce shall be subject to the jurisdiction and determination by the Arbitrator pursuant to the terms and procedures of this Agreement. The Arbitrator shall determine whether an issue or dispute is within the scope of the Arbitrator's jurisdiction.

(emphasis added).

Disputes concerning child custody and visitation are not subject to arbitration, as the Court's role as parens patriae must not be usurped (Goldberg v. Goldberg, 124 AD3d 779 [2d Dept. 2015]; Weisz v. Weisz, 123 AD3d 917 [2d Dept. 2014]; Hirsch v. Hirsch, 4 AD3d 451 [2d Dept. 2004]; Matsui v. Matsui, 200 AD3d 774 [2d Dept. 2021]).

The parties executed the Agreement which contains the following provisions:

4. The Arbitrator may issue a temporary or partial decision or injunction.

5. Judgment on the award rendered by the Arbitrator may be entered in any court having jurisdiction thereof.

* * *

10. The Arbitrator shall retain jurisdiction over this matter after publishing its award, and shall be authorized to modify the award for any reason they deem proper.

* * *

19. In any arbitration proceeding involving custody or parenting time issues, the parties shall have a record made of the arbitration proceeding as to those issues. Such record shall include: (i) a record of all documentary evidence; and (ii) all testimony shall be recorded verbatim. A record of testimony may be made by one of the following: (i) certified shorthand reporter; (ii) electronic recording; or (iii) audio or video recording. The recording of the proceeding by any of the means listed above shall be at the cost of the parties and absent agreement of the parties, the Arbitrator shall decide the proper allocation of the costs of the record.

* * *

25. In any proceeding involving custody, parenting time or child support issues, parties shall require the Arbitrator to make findings of fact and conclusions of law with respect to child-custody, parenting-time, or child support issues. As to those issues, the Arbitrator shall state in writing or otherwise record findings of fact and conclusions of law with a focus on the best-interests standard ...

Here, a review of the Agreement, both in toto and the salient paragraphs above clearly indicate to the Court that the parties contracted to provide the Arbitrator with the authority to determine issues concerning custody and parental access inasmuch as those issues are squarely in dispute in this case and inasmuch as the Agreement provides that the parties agreed to arbitrate the issues of custody and parenting time (see Agreement, Paragraph "2"). While parties to a contract are basically free to make whatever agreement they wish, even if the agreement appears to be unwise to a third party, they may not do so in the presence of a violation of law or transgression of a strong public policy. Rowe v. Great Atlantic & Pacific Tea Co., 46 NY2d 62 (1978). The Court finds that delegating the decision on the issues of custody and visitation to an Arbitrator violates public policy inasmuch as it infringes upon the Court's role as parens patriae.^[4] Therefore, it is hereby:

ORDERED, that so much of the Agreement which purports to delegate to an Arbitrator decision-making over the issues of custody and visitation be and the same are hereby deemed NULL and VOID.

Any other relief requested not specifically addressed herewith is hereby DENIED.

This constitutes the Decision and Order of this Court.

[1] The Temporary Order of Protection remains in effect and on February 5, 2026, was extended through and included August 4, 2026.

[2] On Motion Sequence No.: 035.

[3] Had the Temporary Order of Protection been, for instance, in favor of only one of the parties against the other, and had there been no children of this marriage, the Court may have reached a different result.

[4] While not necessarily before the Court on these submissions, the Court also finds problematic the provision of Paragraph "2" of the Agreement which provides that the parties are to arbitrate "... [a]ll issues that could be raised and adjudicated in court ..." The phrase "all issues" certainly includes the adjudication on the temporary order of protection and whether or not a family offense has been committed. The Court finds that this provision, to the extent it purports to be an agreement to adjudicate the temporary order of protection, is invalid as a transgression of public policy. The Court does not finds that whether or not a family offense has been committed and whether or not a temporary or final order of protection should be issues is a dispute subject to arbitration."

NY FAMILY EVICTION - THE RULE APPLIES TO ALL TENANTS AT SUFFRANCE

In this case, the court held that summary proceedings against a "Tenant at Sufferance" must be an action in ejectment in Supreme Court.

Gomez v. Gomez, 2026 NY Slip Op 26006 - NYC Civ Ct., Kings Co. 2026:

"KAREN MAY BACDAYAN, J.

On May 7, 2025, petitioner, Gerard Gomez ("petitioner"), commenced this holdover proceeding commenced against family members, Joseph Alfred Gomez, Beverley Bailey, Isaiah Gomez ("respondents"), predicated upon a 30-day notice of termination of respondents' tenancy at sufferance served pursuant to Real Property Law ("RPL") § 228. Respondents filed a motion on February 6, 2025, seeking summary judgment based on improper service of the notice to quit. (NYSCEF Doc No. 31.) By the decision and order dated April 22, 2025, the Hon. Madelina Danescu held that the service requirements under Real Property Actions and Proceedings Law ("RPAPL") § 735 are not applicable to a notice of termination of a tenancy at sufferance pursuant to RPL 228 which provides for it's own method of service. (NYSCEF Doc No. 31.) The proceeding was transferred to the trial part, and adjourned for trial. On the trial date, respondent orally argued that this court lacks subject matter jurisdiction over RPL § 228 proceedings to dispossess tenants at sufferance. (See NYSCEF Doc No. 22, amended answer.) As subject matter jurisdiction may be challenged at any time, even on appeal, the court invited briefing on this novel issue and issued a order for the parties' respective memoranda of law. (NYSCEF Doc No. 48.)

ARGUMENTS

Respondents, tenants at sufferance, contend that petitioner is relegated to commencing an action for ejectment in Supreme Court under Article 6 of the RPAPL; and that the 2019 amendment to RPAPL 711 which states that "[n]o tenant or lawful occupant of a dwelling or housing accommodation shall be removed from possession except in a special proceeding" does not reflect any legislative inten[t] to abrogate RPAPL Art[icle] 6 as applied to residential possession[.]" (NYSCEF Doc No. 49, respondents' memorandum of law at 1-2.)^[1]

Respondents rely heavily on the fact that RPAPL Article 7 nowhere specifically provides that the Housing Court may entertain a summary proceeding against a tenant at sufferance or at will. Respondents direct the court's attention to the language of RPL 228 which provides that upon the expiration of the 30-day notice, "the landlord may re-enter, maintain an action to recover possession, or proceed, in the manner prescribed by law, to remove the tenant, without further or other notice to quit." Respondents emphasize that the predecessor statute to RPL 228 — provided that upon expiration of said notice, the landlord could either "re-enter, maintain ejectment, or proceed, in the manner prescribed by law, to remove the tenant, without further or other notice to quit." Thus, respondent surmises that in 1962 — the same year that both RPL 228 was enacted and the legislature created Article 7 of the RPAPL — the legislature merely substituted the language "an action to recover possession" for "ejectment," and did not grant any relief under RPAPL Article 7 to seek possession via a summary proceeding after termination of a tenancy at sufferance.^[2] This, respondents argue, "indicates a legislative intent that recovery of such long-term occupancy be by action (further established by the requirement of RPAPL §641, specifying a `complaint' as the commencing pleading)." (Id. at 4.) More succinctly, respondents' position is that "the absence of the termination of tenancies at sufferance from RPAPL Article 7 forms a statutory mandate to litigate same as an action. As this Court lacks subject matter to adjudicate or convert an action, it is without any option other than to dismiss." (Id. at 6.)

Respondents distinguish a recent case, 1114 JOJ Ave Corp. v. Ramlogan, 240 NYS 3d 898, 901 (Civ Ct, Queens County 2025), rearg denied, 87 Misc 3d 1202(A), 2025 NY Slip Op 51438(U) (Civ Ct, Queens County 2025), in which the court denied a motion to dismiss a proceeding predicated on a RPL § 228 notice served upon a commercial tenant. Respondents argue that the Ramlogan court did not recognize summary eviction proceedings as a valid alternative to an ejectment action to recover property from a tenant at sufferance.

Petitioner opposes respondents' arguments on several bases, and begins its opposition with their own version of the historical context. Respondent states that prior to 1820 ejectment actions were the primary vehicle to regain possession of a residential tenancy, which was impractical for residential tenancies; ejectment actions were "notoriously slow, technical, and ill-suited for the burgeoning urban centers of New York[,]" which "created a pressing need for a more efficient method of eviction." (NYSCEF Doc No. 50, respondents' attorney's mem of law at 3.) For this reason, petitioner argues, in 1820, the summary proceeding was enacted. (L 1820, ch CXXIV.)

Second, petitioner advances that in 1828, in reaction to the decisions like Bradley v. Covel, 4 COW 349, 1825 WL 1682 (Sup Ct, New York County 1825), the legislature amended the 1820 statute which had required a three month notice to quit for tenancies at sufferance. Covel held that the service of a three-month notice to quit a tenancy at will terminated the prior tenancy and created an "implicit agreement" to hold over from year to year at the former rent, thus requiring a second six-month notice to quit. (Id., *351; RPL § 228.) Petitioner posits that the legislature's response was to pass an amended statute to require only one-month's notice for an ejectment action ("without further or other notice to quit"), evincing a legislative intent to restore the "efficiency of a summary proceeding" and "enabling faster evictions" premised upon a tenancy at sufferance. (NYSCEF Doc No. 50 at 8, mem of law.)

Third, petitioner argues that the Revised Statutes of 1828, "established the tripartite structure of remedies that remains in RPL § 228 today." (Id.) Thus, a landlord may choose from the list of disjunctive remedies, to wit, the statute allows that "the landlord [1] re-enter, [2] maintain an action to recover possession, or [3] proceed, in the manner prescribed by law, to remove the tenant, without further or other notice to quit." Petitioner argues that "in the manner prescribed by law" is intended to mean a "summary proceeding."

In the next several sections of petitioner's memorandum of law, petitioner's arguments continue in this vein, laying out what petitioner calls "an unbroken chain of legislative intent" that RPL § 228 are summary proceedings and creatures of Housing Court.

"From 1920 until the enactment of the RPAPL in 1963, summary proceedings were governed by Article 83 of the Civil Practice Act88. The text of CPA § 1410 could not have been clearer: `In either of the following cases, a tenant or lessee at will, or at sufferance, or for part of a year, or for one or more years, of real property, may be removed therefrom, as prescribed in this article . . ." This was not an implication, a judicial interpretation, or an administrative practice. This was the black-letter statutory law of New York State. The Legislature explicitly enumerated `tenant . . . at sufferance' among those who "may be removed" through summary proceedings "as prescribed in this article". The language is mandatory and unambiguous." (NYSCEF Doc No. 50 at 13.)

Petitioner further argues that recent developments and amendments which did not eliminate the language "proceed, in the manner prescribed by law" signal a clear intention of the legislature not to bar a landlord from commencing a summary proceeding to recover possession of a premises from a tenant at sufferance. (Id. at 11.) Petitioner posits that "[i]t makes no sense for the Legislature to mandate a notice requirement for the more cumbersome ejectment remedy while simultaneously foreclosing the expedited summary proceeding remedy that the notice is designed to enable." (Id. at 21.)

Finally, petitioner advances that respondents' argument violates the Housing Stability and Protection Act of 2019 ("HSTPA") which includes the "unequivocal mandate that "[n]o tenant or lawful occupant of a dwelling or housing accommodation shall be removed from possession except in a special proceeding." (Id. at 21.) Petitioner advances that "[f]or residential properties, summary proceedings (special proceedings under RPAPL Article 7) are not merely an option[,] [t]hey are the exclusive legal mechanism for removing tenants and lawful occupants (bold in original, italics substituted)." (Id.) Tenants at sufferance are "unquestionably" not only tenants, but lawful occupants. (Id.) The legislatures choice of words, petitioner contends, evinces "an intent to capture a broad category of persons who have some basis for their initial possession."

Respondent dismisses petitioner's memorandum of law as "rambling and conclusory," and based only on recitation of "decades old law journal articles," and not upon the plain statutory text nor any case law. (NYSCEF Doc No. 51 (respondents' mem of law at 1-2.) Respondent advances that petitioner failed to address that "the distinguishing factor between a tenancy at sufferance and a summary holdover is that `delay or laches on the part of the landlord is a necessary component [in] establishing a tenant at sufferance[,]'" citing to 1114 JOJ Ave Corp. v. Ramlogan, 240 NYS 3d 898, 901 (Civ Ct, Queens County 2025), rearg denied, 87 Misc 3d 1202(A), 2025 NY Slip Op 51438(U) (Civ Ct, Queens County 2025). Because of this element of delay, respondent advances that there is no injustice in requiring a landlord to resort to an ejectment action as "the property owner has lull[ed] occupants into a false sense of stability in their home." (NYSCEF Doc No 51, respondents' reply mem of law at 3.) Respondent reiterates that "where a particular type of occupant is not designated within RPAPL Article 7, the [c]ourt lacks jurisdiction to hear the proceeding." (Id. at 5-6.)

Here, there is no dispute in this proceeding that respondents are tenants at sufferance. (NYSCEF Doc No. 20 at 3, decision and order striking seventh affirmative defense; NYSCEF Doc No. 21, notice of entry.) And it has been decided herein that the requisite notice pursuant to RPAPL § 228 to terminate a tenancy at sufferance was properly served. (Gomez v. Gomez, 2025 NY Slip Op 50609[U], 85 Misc 3d 1263[A]; NYSCEF Doc No. 31, decision and order; NYSCEF Doc No. 35, notice of appeal.) The sole question before this court is whether the New York City Housing Court has subject matter jurisdiction over this summary proceeding to recover possession of a premises from a tenant at sufferance.

This court holds that the Housing Court does not have jurisdiction over summary proceedings commenced after expiration of a notice to quit which has been served pursuant to RPL § 228.

DISCUSSION

The plain language of the New York City Civil Court Act ("CCA") § 110(c) vests the Housing Part of the Civil Court of the City of New York with subject matter jurisdiction over "all summary proceedings to recover possession of residential premises to remove tenants therefrom." CCA 204 ("Summary proceedings") provides in relevant part: "The court shall have jurisdiction over summary proceedings to recover possession of real property located within the city of New York, to remove tenants therefrom, and to render judgment for rent due without regard to amount[.]"

RPAPL 711(1) provides the grounds where a landlord-tenant relationship exists and presumes an agreement for possession between a petitioner and a respondent which is not implied but which arises from an arrangement of some kind, for example, a lease, an occupancy agreement, or an oral month-to-month tenancy. Alternatively, RPAPL 713 ("Grounds where no landlord-tenant relationship exists") provides the specific bases for removal of occupants in a summary proceeding who did not enter into possession pursuant to an agreement with the individual or entity seeking possession.

None of the above authorities confer jurisdiction upon the Housing Part to hear actions to recover possession of common law residential tenancies which have not been codified by statute. The absence of any mention of tenancies at sufferance RPAPL Article 7 is conspicuous given that the legislature has codified other common law causes of action and required specific notices which must be served pursuant Article 7's unique service statute. (RPAPL 735.) For example, RPL § 232-a as amended, allowing for a summary proceeding against a residential tenant upon notice pursuant to RPL 226-c,^[3], ^[4] but requiring notice of only 30 days prior to commencement for other than residential holdovers. Relatedly, RPAPL 735 prescribes the method for service of notices in summary proceedings while RPL § 228 requires a method of service distinct from that in summary proceedings. (Gomez v. Gomez, 2025 NY Slip Op 50609[U], 85 Misc 3d 1263[A] [the court determined that service had been effected properly pursuant to RPL § 228, but was not asked to decide whether or not Housing Court has subject matter jurisdiction over summary proceedings.]

"In reality a tenancy by sufferance is not a tenancy at all. It is merely not an adverse possession. It is an estate created, not by consent, but by the laches of the owner; and, without laches on the part of the owner, there can be no estate by sufferance." (Robert F. Dolan, Rasch's Landlord and Tenant, Including Summary Proceedings § 30:37 [5th ed, May 2025 update].) "A tenancy at sufferance exists where a person once maintained a valid possessory interest in property who then wrongfully continues in possession after the termination of the interest. . . . In addition, to create a tenancy at sufferance there must be a delay by the owner seeking recovery of the premises." (Ramlogan, 240 NYS3d 898 at 901 [internal citations and quotation marks omitted].) "A tenancy at sufferance does not require any prior relationship between the parties at all. . . . [A] tenancy at sufferance arises at common law when an occupant continues in possession after a possessory interest terminates and the occupant has no privity to the party entitled to possession[.]" (Id.) Tenants at sufferance are entitled to a 30-day notice to quit. (RPL § 228.)

RPL § 228 provides:

"A tenancy at will or by sufferance, however created, may be terminated by a written notice of not less than thirty days given in behalf of the landlord, to the tenant, requiring him to remove from the premises; which notice must be served, either by delivering to the tenant or to a person of suitable age and discretion, residing upon the premises, or if neither the tenant nor such a person can be found, by affixing it upon a conspicuous part of the premises, where it may be conveniently read. At the expiration of thirty days after the service of such notice, the landlord may re-enter, maintain an action to recover possession, or proceed, in the manner prescribed by law, to remove the tenant, without further or other notice to quit."

Recent Relevant Cases

Recently, the propriety of commencing a summary proceeding against tenants at sufferance has captured the interest of the bar and the bench, but not the legislature. Prior to two recent cases — 1114 JOJ Ave Corp. v. Ramlogan, 240 NYS 3d 898, 901 (Civ Ct, Queens County 2025), rearg denied, 87 Misc 3d 1202(A), 2025 NY Slip Op 51438(U) (Civ Ct, Queens County 2025), and Macias v. Macias, 2025 NY Slip Op 51627(U), 87 Misc 3d 1219(A])(Civ Ct, Queens County 2025) — the subject matter jurisdiction of the Housing Court to hear cases involving these common law tenancies years was largely presumed and not parsed.^[5] Cases involving tenancies at sufferance are a miniscule percentage of the tsunami of cases heard every year in Housing Court. Over the years, courts have only tacitly suggested, without serious contest, even at the appellate level, that Housing Court has jurisdiction over tenancies at sufferance. Only in the last year has the issued been squarely addressed.

In Ramlogan, 240 NYS3d 898 (Civ Ct, Queens County 2025), rearg denied, 87 Misc 3d 1202(A), 2025 NY Slip Op 51438(U) (Civ Ct, Queens County 2025), the court dismissed the respondents' argument that the petition was fatally defective as it improperly pleaded that the proceeding was a summary proceeding pursuant to RPAPL 711(1). The court agreed with respondents that tenancies at sufferance are not RPAPL 711(1) summary proceedings, but ignored the "excess verbiage" and found that "[t]he fact the relief sought is actually pursuant to RPL §228 does not render the entire petition improper." (Id. at 903.) The court also rejected the respondents' argument that they were not "tenants at sufferance because `a tenancy by sufferance cannot be created where there was never a landlord-tenant relationship to begin with[.]'" (240 NYS3d at 902.) The Ramlogan court also

In its original decision, the court in Ramlogan was not concerned with the subject matter jurisdiction of the New York City Housing Court to hear proceedings to terminate tenancies at sufferance. (Ramlogan, 240 NYS 3d 898.) However, upon reargument, the court was pressed to answer the question. (Ramlogan, 87 Misc 3d 1202(A), 2025 NY Slip Op 51438(U), *2 ["the question that must be addressed, that has not been discussed in any case, is whether RPL §228 can provide the necessary `procedural vehicle' to maintain a summary eviction proceeding notwithstanding the fact a tenant at sufferance is not included within RPAPL Article 7 [emphasis added].") The Ramlogan court adhered to its prior decision that notice pursuant to RPL § 228 is a sufficient predicate to a summary proceeding, and continued further to posit that "the logical and natural impact of RPL § 228 is to permit a summary proceeding to remove a commercial tenant at sufferance[.]" (2025 NY Slip Op 51438[U], *3.)

Based upon prior practice, and not precedent, the Ramlogan court concluded that "the numerous cases cited that have so held surely endorse this view."^[6] (2025 NY Slip Op 51438[U], *3.) The court acknowledged that, unlike other statutes which specifically provide for a summary proceeding, referring to RPL 232-a ("Notice to terminate monthly tenancy or tenancy from month to month in the city of New York"), there is no such language in RPL § 228. Even so, the court determined that "RPL § 228 surely allows a summary proceeding." (Id. at *3; cf. Mastas v. Extra Closet, Inc., 146 Misc 2d 698, 700 [Civ Ct, Kings County 1990] [dismissing petition finding that respondents were tenants at sufferance and not subtenants and, thus, "no RPAPL summary proceeding would be available to petitioner."])

The Ramlogan court reasoned that because the legislature provided "an action to recover possession (emphasis added)," may be commenced after service of RPL § 228 notice, there is "sufficient authority to allow a summary proceeding notwithstanding its absence from RPAPL Article 7 (emphasis added)." (Ramlogan, 2025 NY Slip Op 51438(U), *3.) The Ramlogan court did not harmonize its prior holding in the decision under review that a proceeding to evict a tenant at sufferance is not an RPAPL 711(1) proceeding. Nor did the court explain why it found that a summary proceeding is the proper vehicle to regain possession from a tenant a sufferance when "the relief in [such a] case flows through RPL § 228, the specific statute enacted to deal with tenancies at sufferance and not RPAPL § 711(1) (emphasis added)." (Ramlogan, 240 NYS3d at 903.)

Also recently, in Macias v. Macias, supra, in the context of a residential holdover proceeding, the court undertook an analysis of the issue with which this court is now charged. The Macias court found that the Housing Court has subject matter jurisdiction over proceedings to terminate tenancies at sufferance. As in Ramlogan, the court rested its reasoning on the shoulders of numerous cases, some appellate, which have allowed a landlord to maintain a summary proceeding against a tenant at will or a tenant at sufferance. Contrary to the Ramlogan court, which opined that a proceeding against a tenancy at sufferance is not an RPAPL 711(1) proceeding, the Macias court held, "Therefore, as this summary holdover proceeding was commenced pursuant to RPAPL 711(1), the court has subject matter jurisdiction over this proceeding (emphasis added)." (Macias, 2025 NY Slip Op 51627[U], *3.)^[7]

Relatedly, in Olympic Galleria, Co. v. Sitt, 241 AD3d 1092 (1st Dept 2025), in the context of an ejectment action to oust a month-to-month tenant, the court declined — as does the court herein — to read into the law that which is not there, observing that the legislature has neither seen fit to bar ejectment actions against month-to-month tenants, nor to specifically prescribe a shorter notice for common law ejectment actions against such tenants. Thus, according to Sitt, a six-month notice is required if the landlord, for whatever reasons, chooses to proceed in Supreme Court pursuant to Article 6 of the RPAPL (`Action to Recover Real Property.'") (Sitt, 241 NY3d at 1093; cf RPL § 228.) The distinction between Sitt and the case at bar is that, in the case of month-to-month tenancies, the legislature has provided an alternative remedy in the form of a summary proceeding pursuant to RPL § 232-a which requires specifically legislated predicate notices when commenced in Housing Court. Unlike here, ejectment is not the exclusive remedy against month-to-month tenants because the legislature has written that it is not.

As observed in Sitt, "Despite the advent of the various statutory remedies available to a landlord beset with a recalcitrant tenant, "[t]he common-law principles governing the ejectment action are unchanged, unless explicitly modified by statute (emphasis added)." (Sitt, 241 AD3d at 1093; see also Alleyne v. Townsley, 110 AD2d 674, 675 [2d Dept 1985].) The Court of Appeals has observed that "a statute must be read and given effect as it is written by the Legislature, not as the court may think it should or would have been written if the Legislature had envisaged all the problems and complications, which might arise in the course of its administration (internal citation and quotation marks omitted)." (Allen v. Minskoff, 38 NY2d 506, 511 [1976].)

Here, the legislature has not created a summary proceeding to evict tenants at sufferance in Housing Court; rather, the legislature has provided only one modification to the common law cause of action against a tenant at sufferance, to wit, a specific notice in an ejectment proceeding where one did not exist before. (RPL § 228; Livingston v. Tanner, 14 NY 64, 66 [1856] ["at common law a tenant at sufferance was not entitled to notice to quit[.]" Like Article 7 of the RPAPL, which was legislated in derogation of common law, this modification must be strictly construed as the minimum notice that is to be given a tenant at sufferance in an ejectment action. Notably, the legislature has provided for an alternative summary proceeding against one kind of tenancy at sufferance, "the tenant of a life tenant,"^[8] but like § RPL 232-c, does not bar an ejectment action.

Common Law Causes of Action and Statutes Enacted in Derogation of Common Law

Neither the Ramlogan or Macias courts considered the critical interplay between the common law, and statutes enacted in derogation thereof. (See McKinney's Cons Laws of NY, Book 1, Statutes § 301 ["The common law is never abrogated by implication, but on the contrary it must be held no further changed than the clear import of the language used in a statute absolutely requires."]) Thus, an implication drawn from trial court decisions — or appellate cases for that matter — in which the subject matter jurisdiction of the Housing Court was not controverted nor specifically decided — cannot act to supplant the common law, or create a rule contrary to same.

As stated in People v. Phyfe, 136 NY 554, 558-559 (1893) the Court of Appeals opined:

"[I]t is a familiar canon of construction that an intention to change the rule of the common law will not be presumed from doubtful provisions, and the presumption is that no such change was intended, unless the enactment is clear and explicit in that direction; and, if the terms of the statute will admit of two interpretations, that which will most nearly conform to the rules of the common law is in all cases to be adopted."

The instant proceeding, as well as Ramlogan and Macias, illustrate that there is a disagreement regarding whether the legislature intended to create a cause of action in a summary proceeding against a tenant at sufferance. This disagreement must be settled by deference to the common law. As observed in Larned v. Hudson, 60 NY 102, 105 (1875), "The statute does not define what shall constitute a tenancy at will, but leaves that question to be determined by the rules of the common law." The rules of common law find no purchase in a statute which has been legislated in derogation of same and which must be strictly construed.

The amendment of RPL § 228 was enacted in reaction to a judicial interpretations of a former iteration of RPL § 228 with which the legislature disagreed, e.g. Bradley v. Covel, discussed supra, in order to clarify the legislature's intention that the notice to quit prescribed in RPL § 228 is the only notice required prior to ouster of a tenant at sufferance (or at will) and that an additional notice after the expiration of that notice is not required: "A tenancy at will or by sufferance, however created, may be terminated by a written notice of not less than thirty days . . . without further or other notice to quit." While petitioner would have the court imbue the legislative history of Article 7 with an intention to include all tenancies at sufferance within the realm of a summary proceeding where they specifically was not included in Article 7 when legislated — and amended and amended again — no act of the legislature has provided an explicit, alternative means of recovery through a summary proceeding for proceedings such as the instant proceeding. "A court cannot by implication supply in a statute a provision which it is reasonable to suppose the Legislature intended intentionally to omit" because "the failure of the Legislature to include a matter within the scope of an act may be construed as an indication that its exclusion was intended (internal quotation marks and citations omitted)[.]" (See e.g. Commonwealth of N. Mariana Islands v. Canadian Imperial Bank of Com., 21 NY3d 55, 62 [2013]; see also Fitzgerald v. Washington, 80 Misc 2d 861, 870 (Civ Ct, New York County 1975) [noting the rules of statutory construction militate that when amending the statute to include attorneys as individuals who could verify a petition "the legislature is presumed to have been aware of the interaction of RPAPL § 721 with the various provisions of the CPLR[,]" citing Erikson v. Helfand, 1 AD2d 59 [3d Dept], aff'd, 1 NY2d 775 1955].)

Neither are the numerous cases — cited by the Ramlogan and Macias courts to support a judicially created cause of action under Article 7 of the RPAPL — the kind of judicial precedent contemplated by the doctrine of stare decisis. This doctrine, which in Latin means "to stand by things decided" and which is fundamental to New York's common law system, requires New York courts to follow the rulings of higher courts in similar cases which have parsed the same legal issues. The previous deciding-court must have binding authority over the lower courts, otherwise the decision is merely persuasive authority which does not enjoy the gravitas of stare decisis.

Here, only two reported decision from courts of concurrent jurisdiction prior to this decision have been charged by motion to analyze whether or not the Housing Court has the subject matter jurisdiction to adjudicate the termination of tenancies at sufferance; and only one court has done so in the context of a residential eviction proceeding. It has been observed that "(t)he long time failure of Congress to alter (a statute) after it had been judicially construed . . . is persuasive of legislative recognition that the judicial construction is the correct one." (Apex Hosiery Co. v. Leader, 310 US 469, 488 [1940].) In the context of tenancies at sufferance, despite numerous opportunities to do so, the legislature has not acted to clarify either RPL § 228 or RPAPL Article 7. That the legislature has neglected to do so is no beacon of legislative intent where the only caselaw regarding the subject matter jurisdiction of the Housing Court to adjudicate these cases is less than a year old, and is contradictory. Accordingly, it would be premature to take any inference from legislative inaction at this point in time.

RPAPL Article 7 Was Enacted In Derogation of the Common Law

When a statute is enacted in derogation of the common-law rights of tenants, each provision . . . must be strictly construed so as to avoid termination[.] (Zenila Realty Corp. v. Masterandrea, 123 Misc 2d 1, 6 [Civ Ct, New York County 1984]; see also Wang v. James, 40 NY3d 497, 503 [2023], citing Morris v. Snappy Car Rental, Inc., 84 NY2d 21, 28 [1994] and McKinney's Cons Laws of NY, Book 1, Statutes § 301). "[A]s a statutory construct, summary proceedings must strictly comply with the provisions of RPAPL article 7." (200 Claremont Ave. Hous. Dev. Fund Corp. v. Est. of Lewis, No. 2024-07825, 2025 WL 3672337 (App Div, 1ts Dept 2025.) Statutes such as RPAPL Article 7, which are enacted in derogation of common-law rights, "may not be extended by implication[.]" (Gemelli v. Murdock, 273 AD 1019, 1019 [2d Dept 1948], aff'd, 298 NY 664 [1948].) In the case of tenancies at sufferance, there is nothing in the plain language of Article 7 to strictly construe. The same rule of strict construction must be applied to RPL § 228, a statute enacted in derogation of common law. "A tenant strictly at will was not, prior to the Revised Statutes, entitled to notice to quit[.]"

Many Housing Court judges, including appellate courts considering Housing Court decisions, have construed whether a tenancy at sufferance or at will exists by applying common law principles. (See e.g. 4720 Avenue, Inc. v. Harley House, 81 Misc 3d 139[A], 2023 NY Slip Op 51459[U], *1 [App Term, 2nd Dept 9th & 10th Jud Dists 2023] [stating that tenancy at sufferance arises at common law when an occupant continues in possession after a possessory interest terminates and the occupant has no privity to the party entitled to possession."]) But the common law finds no application in a statute specifically enacted in derogation of common law definitions and procedures, i.e. RPAPL Article 7, which must be strictly construed.

The Appellate Term, Second Department, endorses the strict construction of summary proceedings commenced pursuant to RPAPL Article 7. For example, in Sequoia Partners, LLC v. Najabat Ali, 67 Misc 3d 133(A), 2020 NY Slip Op 50493(U) (App Term, 2d Dept, 9th & 10th Jud Dists 2020), the court dismissed a summary proceeding, holding that "[w]hile RPAPL 713(5) is apparently the claimed basis for this proceeding, petitioner, a purchaser from a purchaser in foreclosure, lacks standing to maintain such a proceeding, and "this proceeding is not maintainable pursuant to any other provision of RPAPL 713." In Castle Peak 2012-1 REO, LLC v. New York Found. for Senior Citizens, 63 Misc 3d 157(A) 2019 NY Slip Op. 50834(U), * 2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019] the Appellate Term, Second Department opined,

"There is no provision in the RPAPL which allows for the maintenance of a summary proceeding by a purchaser in lieu of foreclosure. RPAPL 713(5) allows for a proceeding by the holder of a deed only where that deed was delivered pursuant to a foreclosure sale, which did not occur here. The parties cannot by consent create a summary proceeding where the legislature has not provided for one. `As the right to maintain summary proceedings did not exist at common law and is solely a creation of statute, it applies only in those cases authorized by the statute' (Dulberg v. Ebenhart, 68 AD2d 323, 328 [1979].)"

While inertia creates a temptation to adopt petitioner's reasoning that, "[i]t makes no sense for the Legislature to mandate a notice requirement for the more cumbersome ejectment remedy while simultaneously foreclosing the expedited summary proceeding remedy that the notice is designed to enable," NYSCEF Doc No. 50 at 21, a "court[] must construe clear and unambiguous statutes as enacted and may not resort to interpretative contrivances to broaden the scope and application of statutes." (Sitt, 241 AD3d at 1093.) While it is convenient to surmise that the legislature intended to include tenancies at sufferance and tenancies at will within the ambit of summary proceedings under Article 7 of the RPAPL, for over a century and the passage and amendment of numerous new laws, the legislature has not articulated this intention; nor has the legislature amended Article 7 or the Real Property Law to create an alternative summary proceeding option for termination of common law tenancies at will or at sufferance. (Compare RPL § 232-a; see n 2, supra; compare also RPAPL 713[6] which specifically allows for a summary proceeding against a tenant of a life tenant.))

CONCLUSION

Tenancies at sufferance, "however created," are found in a variety of situations which are more complicated than traditional landlord-tenant relationships and occupancy agreements, RPAPL 711(1); or those specifically legislated causes of action where there is "no landlord-tenant relationship." (RPAPL 713.) Issues involving tenancies at sufferance arise, as here, between family members, in situations involving foreclosure, deed fraud, and thorny title disputes. Such cases often require broader jurisdiction than that afforded the Housing Court, as well as a less summary and much more fact specific analysis.

The court is cognizant that many of the landlords faced with a tenant at sufferance are small property owners who may be disproportionately affected by the ostensibly daunting task of filing a plenary action. However, "[i]f that is an undesirable result, the problem is one to be addressed by the Legislature[,]" Chazon, LLC v. Maugenest, 19 NY3d 410, 416 (2012), and whether by accident or design, the legislature "has not [yet] spoken in the unmuted strains necessary to displace the common law." (Hechter v. New York Life Ins. Co., 46 NY2d 34, 39 [1978].)

Accordingly, it is hereby

ORDERED that the proceeding is dismissed as there is no provision under RPAPL Article 7 which provides for subject matter jurisdiction of the Housing Court over proceedings to oust a tenant at sufferance. This dismissal is without prejudice to a plenary proceeding.

This constitutes the Decision and Order of the Court.

[1] Respondents advance that, as a general proposition, tenants at sufferance will be deprived of their fundamental right to trial by jury, not requested herein, should the court find it may "hear an action in ejectment of a tenant at sufferance as a summary proceeding[.]" (Id. at 2.)

[2] It is true that nowhere in Article 6 of the RPAPL is the term "ejectment" employed.

[3] RPL § 232-a provides in full: "No monthly tenant, or tenant from month to month, shall hereafter be removed from any lands or buildings in the city of New York on the grounds of holding over the tenant's term unless pursuant to the notice period required by subdivision two of § 226-c (Notice of rent increase or non-renewal of residential tenancy), or for a tenancy other than a residential tenancy at least thirty days before the expiration of the term, the landlord or the landlord's agent serve upon the tenant, in the same manner in which a notice of petition in summary proceedings is now allowed to be served by law, a notice in writing to the effect that the landlord elects to terminate the tenancy and that unless the tenant removes from such premises on the day designated in the notice, the landlord will commence summary proceedings under the statute to remove such tenant therefrom (emphasis added)."

[4] RPL 232-a now incorporates RPL 226-c which varies the notice period provided to a month-to-month tenant in a summary proceeding depending on the length of occupancy (from 30 days' notice for cumulative occupancy of one year or less, with a cap of 90 days for tenants who have occupied the premises for two or more years). The legislature did not incorporate RPL § 226-c into RPL § 228, further differentiates actions against tenants at sufferance from the requirements of a summary proceeding.

[5] This judge has adjudicated proceedings involving tenancies at sufferance and at will, however, the court has never been asked, as here, to specifically decide the subject matter jurisdiction of the Housing Court over tenancies at sufferance or at will.

[6] It is noted that the cases cited are among the cases tacitly accepting the jurisdiction of the Housing Court where the issue of subject matter jurisdiction was not raised.

[7] Pusatere v. City of Albany, 214 AD3d 91 (3d Dept 2023), cited in Macias as authority for NYC Housing Court's jurisdiction to hear summary eviction proceedings against tenants at sufferance and decided prior to the enactment of the Good Cause Eviction Law, is inapt. That decision simply found that the code of the city of Albany was pre-empted by state law which did not require a landlord to demonstrate additional good cause to evict a tenant at sufferance or tenant at will. The proceeding was dismissed based on RPAPL 741(6), L 2022, ch 615, § 1, which is specific to the city of Albany and provides: "In the city of Albany, where the premises from which removal is sought is subject to a local law requiring the registration of said premises as a condition of legal rental, allege proof of compliance with such local law." Accordingly, the Pusatere court held, "that section is not preempted" but did not parse subject matter jurisdiction. Id. at 96.

[8] RPAPL 713(6) states in full "He is the tenant of a life tenant of the property, holding over and continuing in possession of the property after the termination of the estate of such life tenant without the permission of the person entitled to possession of the property upon termination of the life estate.""