An owner (sister) commenced a licensee holdover proceeding, after service of a 10-day notice to quit, seeking to evict her respondent brother from a studio apartment. The sister, the record owner of the subject two-family home, alleged that she had revoked the brother’s license to occupy the apartment. The 76-year-old brother was a disabled Vietnam War veteran. He had continuously lived in the house for more than 60 years.
The brother moved to dismiss the proceeding pursuant to CPLR §3211(a)(2) for lack of subject matter jurisdiction. He contended that his sister had obtained the deed to the home by fraud. Alternatively, he sought an order transferring the proceeding to the Surrogate’s Court, where the brother had brought an order to show cause seeking an order directing the transfer of the home to him, based upon the sister’s alleged fraud in obtaining a deed from their father. The sister cross-moved for “reissuance and execution of the warrant of eviction which had previously been granted on default.”