In the 1963 decision of the Appellate Division, First Department Rosenstiel v. Rosenstiel, 20 A.D.2d 71 (1st Dept. 1963), the court first set forth what has since become known as the “familial exception” to the maintenance of a summary proceeding pursuant to Section 713(7) of the Real Property Actions and Proceedings Law (RPAPL). That section permits the maintenance of a summary proceeding against persons who are in occupancy of real property pursuant to a license which has been revoked.
In Rosenstiel, the First Department held that in the context of a husband and wife, because of “special rights incidental to the marriage contract and relationship, the wife was not a “licensee” of her husband and therefore the husband could not bring a summary licensee holdover proceeding to evict her.
