SUMMARY PROCEEDING AGAINST FAMILY

In this case,

In this case, it's sister evicting brother in the house she owns but he lives in with their mother.

Persain v. Persane, 2022 NY Slip Op 22380 - NY: City Court, Queens Civil Court 2022:

 "Respondent's motion is made pursuant to CPLR § 3211(a)(2), which concerns lack of subject matter jurisdiction. It is a basic principle that Housing Court is "vested with subject matter jurisdiction over housing matters by statute (NY City Civ. Ct. Act § 110)." 170 West 85th Street Tenants Ass'n v. Cruz, 173 AD2d 338, 339 [1st Dept 1991]; see also 433 West Assocs. v. Murdock, 276 AD2d 360, 360-361 [1st Dept 2000]; 716 Realty, LLC v. Zadik, 38 Misc 3d 139[A], 2013 NY Slip Op 50194[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]. The crux of respondent's argument is that petitioner (who is respondent's sibling) cannot bring a proceeding against him as a licensee pursuant to RPAPL § 713 since he is petitioner's family member and (according to the statements in his affidavit) he helped finance the purchase and ongoing mortgage payments for the subject premises, where he lives with his mother.

Contrary to the first part of respondent's argument, this is not a licensee proceeding. Annexed to the petition is a 90-day notice issued pursuant to Real Property Law (RPL) § 226-c. Both the 90-Day notice and petition allege that respondent is a tenant pursuant to a month-to-month rental agreement. There is no statement that respondent is a licensee or that he has any other status corresponding with a ground set out in RPAPL § 713. Therefore, the court does not find relevant the line of cases exemplified by Heckman v. Heckman, 55 Misc 3d 86 [App Term, 2d Dept, 9th & 10th Jud Dists 2017], which held that there is no general "familial exception" to the maintenance of summary proceedings brought pursuant to RPAPL § 713. More germane is the case law holding that there is no per se familial exception to the maintenance of a summary holdover proceeding based on the termination of a tenancy or other rental agreement. See Pugliese v. Pugliese, 51 Misc 3d 140[A], 2016 NY Slip Op 50614[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016];^[2] see also Tausik v. Tausik, 11 AD2d 144 [1st Dept 1960], affd 9 NY2d 664 [1961]; Readick v. Green, 73 Misc 3d 132[A], 2021 NY Slip Op 50973[U] [App Term, 1st Dept 2021].

The narrow exception to the maintenance of summary proceedings against family members relates to those relationships where there is a "support" obligation, whether to a spouse or to a minor child. See Rosenstiel v. Rosenstiel, 20 AD2d 71, 76-77 [1st Dept 1963]; Heckman, 55 Misc 3d at 88. There is no allegation in the motion at bar that any such obligation of ongoing support exists between petitioner and respondent. To the extent that respondent asserts that he may have some equitable defense (cf. Nissequogue Boat Club v. State, 14 AD3d 542, 544 [2d Dept 2005]) based on his alleged financial contributions to the purchase of the property and mortgage payments, there is no proof of any such contributions annexed to the motion. Moreover, petitioner, in her affidavit in opposition, disputes the contributions and states that she was the sole purchaser of the property (and annexes the stock certificate of the subject cooperative apartment, which solely names her as the holder of the shares). She also states in her affidavit that respondent only paid her rent, not contributions to the maintenance, for one year after he moved in (in 2016). Ultimately, these factual disputes must be resolved at trial. However, respondent has not established that this court lacks subject matter over the instant proceeding. Accordingly, the motion to dismiss is denied."