MORE ON FAMILY EVICTION

Yu v. Zhan, NYLJ 1/9/19, Date filed: 2018-12-18, Court: District Court, Nassau, Judge: Judge Scott Fairgrieve, Case Number: LT-004391-18NA:

"Generally, and with limited exceptions, a family member may not evict another family member in a summary proceeding where the occupancy arises out of a familial relationship (Rosenstiel v. Rosenstiel, 20 AD2d 71 [1st Dept 1963]; Kakwani v. Kakwani, 40 Misc 3d 627 [Nassau Dist Ct 2013]; Lally v. Fasano, 23 Misc 3d 938 [Nassau Dist Ct 2009]; Hon. Stephen L. Ukeiley, The Bench Guide to Landlord & Tenant Disputes in New York 47 [2d ed 2013]). “However, a summary proceeding is permitted to evict a family member whose occupancy is not the result of a ‘familial relationship’” (Hon. Stephen L. Ukeiley, The Bench Guide to Landlord & Tenant Disputes in New York 47 [emphasis in original]).

As stated in Lally v. Fasasno, 23 Misc3d at 941: “In interpreting the definition of a ‘family,’ courts have traditionally considered whether the parties lived together ‘in a family unit’ with ‘some indicia of permanence or continuity’ (Braschi v. Stahl Assoc. Co., 74 N.Y.2d 201, 211, 543 N.E.2d 49, 54 [1989] ). Whether the parties resided together has often been the ‘critical factor’ in determining whether they are to be considered a ‘family’ for legal purposes (see Sirota, 164 Misc.2d at 967, 626 N.Y.S.2d 672).” It is uncontested that petitioner and respondent do not live in the subject premises together. Accordingly, there is no familial relationship that would preclude this court from exercising jurisdiction over this action."