Scott E. Mollen
Scott E. Mollen ()

Landlord-Tenant—Licensee Holdover Proceeding Dismissed—Based on Indicia of True Family, Court Found That Respondent, a Former Wife, iIs A “Family Member” and Not a “Mere Licensee”

The petitioner commenced a licensee holdover proceeding against his former wife, the respondent, seeking to recover possession of the subject premises. The petition alleged that the respondent’s license to occupy the premises had been terminated pursuant to a 10-day notice to quit to licensee (notice). The respondent occupies a first floor apartment and the petitioner rents out the second floor apartment to a third party. The petitioner and the respondent had been married in 1995, but divorced 16 years later in 2011. They lived together in their marital home for many of those 16 years. Although the respondent did not pay rent or use and occupancy, she alleged that “she made payments towards utilities and maintenance of the residence.” The deed and mortgage were in the petitioner’s name.

The petitioner attempted to eject the respondent in the Supreme Court, but had failed because the divorce proceeding had granted him “neither ownership nor sole and exclusive occupancy of the marital residence.” The petitioner then commenced a licensee holdover proceeding, which had been dismissed because of a defective predicate notice. The petitioner thereafter commenced the instant licensee holdover proceeding.

The petition described the premises “as ‘all rooms of [the premises].’” The petition did not specify which apartment the petitioner sought possession of. RPAPL §741 requires that “the petition describe the premises from which removal is sought….The description must be accurate enough to allow a marshal to locate the premises without additional information.”

The court found that,

based on indicia of true family,…the respondent is a family member, not a mere licensee. RPAPL §713 (7) provides, in part, that after the service of a ten day notice to quit, a special proceeding may be brought against a licensee when his/her license has expired or has been revoked. While no explicit definition of “licensee” is provided in RPAPL §713 (7), a licensee in a landlord/tenant context is generally defined as someone who is granted permission, express or implied, by the owner to use and/or occupy the subject premises….Licenses are revocable and not assignable. Frequently licensee holdover proceedings are brought against family member (erroneously or otherwise) to evict.

A prior Appellate Division case held that “absent any legal modification to the marital relationship, a spouse may not be evicted in a summary licensee holdover proceeding. Citing the pertinent Law Revision Commission report, the court observed that RPAPL §713 (7) was not intended to shield a divorced or separated spouse.” However, the subject court observed that “case law over the past 50 years has shifted away from the exclusionary legislative intent espoused above.”

The court cited decisions which held that “a de facto spouse/paramour/partner” was not a mere licensee and cases that reach similar results with respect to “stepchildren,” “adult lifetime partners,” “adult children,” “an ex-girlfriend and minor children of the relationship,” “adult grandchildren” and “a sister-in-law.” The court further explained that “[i]n determining whether a family member is [a] licensee,” courts will employ “a case-by-case analysis.”

The court noted that the respondent had been married to the petitioner for approximately 16 years, they have shared a home and the respondent had contributed monetarily to the household. The court acknowledged that “facts on emotional support are sparse,” but stated that “the very nature of a husband and wife relationship implies a degree of emotional support and interdependence.” Thus, the court emphasized the length of respondent’s marriage to the petitioner, sharing of the home with petitioner, financial contributions to the household, and the “interdependent relationship.”

The court further opined that “despite the divorce, a family relationship still exists.” Decisional precedent found that “an ex-girlfriend met the requirements of a family member.” The subject court reasoned that “[i]f an ex-girlfriend is afforded such rights, then it logically follows that an ex-wife from a 16 year marriage should too enjoy rights beyond that of a mere licensee. Divorce does not erase 16 years of interdependence and support.” Thus, based on the indicia of “true family,” the court held that the respondent is a family member and not a mere licensee and a license holdover proceeding was “inappropriate in the instant case.” The court also found that the petition was defective in that it failed to adequately describe the premises sought to be recovered. Thus, the petition was dismissed.

Nauth v. Nauth, 041795/13, NYLJ 1202633189536, at *1 (Civ. BX, Decided Nov. 12, 2013), Rodriguez, J.

Landlord-Tenant—NYC Pet Law—Landlord Had Commenced a Proceeding Within Three Months of Learning That Tenant Harbored A Pet in Violation of Its Lease, But Landlord Had Served a Defective Notice of Termination—Landlord Could Not Rely on the Commencement of the Prior Proceeding to Argue that a Subsequent Proceeding Had Been Timely Commenced Within the Three-Month Period a trial court had awarded a landlord possession in a holdover summary proceeding. The Appellate Term reversed and dismissed the petition.

Rent-stabilized tenants had entered into a lease in 1976. In May 2008, the tenants’ daughter, who had previously resided in the apartment, moved back into the apartment with her dog. The landlord owns unsold shares of stock in a non-eviction cooperative building. In late January 2010, the tenants’ daughter was seen entering the apartment with the dog.

On Feb. 2, 2010, the landlord’s manager mailed, by first-class mail, a letter to the tenants advising them that harboring the dog violated the lease and the dog must be removed. After the tenants failed to comply with the foregoing “purported ‘Notice of Cure,’ a notice of termination ['termination notice'] was left on the tenants’ door on April 26, 2010, informing them that if they failed to vacate the premises on or before April 29, 2010, landlord would commence a proceeding to recover [the apartment].”

The foregoing predicate notices “were not served on tenants in accordance with provisions of the lease, which required that notices be personally delivered to tenants or sent to tenants by registered or certified mail.” Moreover, the termination notice failed to comply with “Rent Stabilization Code ['RSC'] (9 NYCRR) §2524.2 (c)(2), which requires that the [termination notice] be served at least seven calendar days prior to the date specified for surrender of possession.”

On April 30, 2010, the landlord commenced a holdover summary proceeding. After the tenants moved to dismiss the petition, “the parties executed a stipulation of discontinuance which ‘discontinued [the proceeding] without prejudice based upon [tenants'] jurisdictional objections related to improper service of process….”

On Oct. 7, 2010, the landlord commenced the instant holdover summary proceeding, claiming that “the tenants had violated their lease by harboring a dog without landlord’s written permission.” The tenants moved to dismiss, arguing that “they had harbored the dog openly and notoriously for more than three months before landlord had commenced the instant proceeding, and were thus protected under New York City’s Pet Law….”

The landlord countered that “it had, within the three-month period, timely commenced the prior holdover proceeding against tenants, predicated on the same lease violation, and…since that proceeding had been ‘discontinued without prejudice’ based upon tenants’ objections regarding service of the predicate notices, the instant holdover proceeding, albeit commenced outside the three-month period, was timely.”

The trial court denied the tenants’ motion to dismiss, finding that the “landlord had acted diligently in timely commencing the prior case, but had simply acted in a procedurally defective manner” and rendered a decision in favor of the landlord. The tenant appealed.

The landlord claimed that its proceeding had been timely commenced, citing the Appellate Division, First Department case of Baumrind v. Fidelman, (183 AD2d 635 [1992]), where “the parties had also stipulated to discontinue, without prejudice, a holdover proceeding which had been commenced within three months of the landlord’s first learning of the presence of the tenant’s pet. In Baumrind, the tenant had not been properly served with process…, and, after the discontinuance, the landlord re-served the tenant, albeit outside the three-month period. The Appellate Division, First Department held that dismissal of the petition was inappropriate because there was ‘no indication that landlord here had not acted diligently, only that she acted in a procedurally defective manner’….” Baumrind had declined “to give an ‘overly literal interpretation’…to the language of the Pet Law giving the landlord a ‘three month period to commence a summary proceeding’….”

The subject court, (the Appellate Term for the 2d, 11th and 13th Judicial Districts) (court) noted that “the Appellate Division, First Department, in Seward Park Hous. Corp. v. Cohen (287 AD2d 157 [2001]) limited Baumrind to its unique facts, and instead relied on a literal interpretation of the Pet Law. Other cases following Seward Park have noted that the Pet Law ‘requires strict enforcement of the three-month commencement rule’….”

The court found that Baumrind was “distinguishable from this case.” Pursuant to “[RSC] (9 NYCRR) §2524.2 (c) (2), a seven-day notice of termination was required before landlord could commence the prior holdover proceeding.” Here, “the landlord served the [termination notice] (with a termination date of April 29, 2010) on April 26, 2010, and this shortening of the notice period in the prior proceeding from the requisite seven days to only three days after service rendered that notice fatally defective….” Since the aforementioned termination notice “could not have validly terminated the tenancy within the three-month period, unlike in Baumrind, ‘the landlord here had not acted diligently’…in the first instance and, thus, landlord’s commencement of the prior holdover proceeding…can be given no legal effect.” Thus, the court dismissed the petition. Since the tenants admitted to having breached the no-pet provision, the court declined to award the tenant attorney fees.

Gold Queens v. Cohen, 2011-2932 Q C, NYLJ 1202629495614, at *1 (App. Tm., 2d, Decided Nov. 12, 2013), Before: Pesce, P.J., Aliotta and Solomon, JJ. All concur.

Defendant’s Claim of Prescriptive Easement and Request For Permanent Injunction Enjoining the Plaintiff From Interfering With the Easement Rejected—”Hostile” Element Not Established—Plaintiff Had Permitted Others to Traverse His Property as a “Neighborly Accommodation” Because It Benefitted the Plaintiff’s Stores As Well As Other Stores—Even If a Prescriptive Easement Had Been Established, the Proposed Use Would Have Exceeded the Extent of the Easement

A plaintiff sought a declaration that the defendants did not possess a prescriptive easement, dismissal of the defendants’ counterclaims, or in the alternative, a declaration that “the proposed increased uses exceed any existing limited prescriptive easement, which would then constitute trespass, and a permanent injunction enjoining defendants from trespassing over plaintiff’s property to gain access to the rear of the [defendants'] premises.” The defendants sought a declaration that they and their tenants have a prescriptive easement over the plaintiff’s property and a permanent injunction enjoining the plaintiff from interfering with such easement.

This action involved adjoining single story properties that contained retail stores fronting on a commercial road (road). Parking lots were located at the rear of the premises. A small parking area behind the defendants’ premises, was used by the defendants’ retail tenants, mostly for store owner parking. The defendants’ tenants also had rear entrances to their businesses.

In order to access the defendants’ parking area in the rear entrance of the defendants’ tenants’ businesses, vehicles and pedestrians must “cross over plaintiff’s private parking lot.” The defendants’ tenants’ stores are all accessible from the road.

The plaintiff had acquired the property that adjoins the defendants’ property in 1974. In 2011, the defendants obtained land use approvals which would permit the opening of a restaurant in one of defendants’ vacant storefronts. The plaintiff had commenced an Article 78 petition challenging such permits. The plaintiff’s petition had been dismissed in a prior court decision.

The court explained that “‘[a]n easement by prescription is demonstrated by proof of the adverse, open and notorious, and continuous use of the subject property for the prescriptive period,’ which is ten years….” Here, the “defendants’ traversing of plaintiff’s parking lot was open, notorious, and continuous for the prescriptive period.” The salient issue involved the question of hostility.

The court further explained that:

[i]t is well-settled that a prescriptive easement arises by the adverse, open, notorious and continuous use of another’s land for the prescriptive period….Generally such use of a right-of-way is presumed to be adverse and casts the burden on the owner of the servient tenement to show that the use was by license….

However, the presumption is inapplicable when the general public uses the subject area, as is the case here….Thus, defendants are required to prove that their traversing of plaintiff’s parking lot is adverse/hostile, in order to establish the existence of a prescriptive easement in their favor.

The plaintiff’s manager’s testimony described the defendants’ tenants’ businesses as “a dry cleaner, a shoe repair shop, a beauty parlor and…former gift shop.” Such testimony also described “their customers and their hours of operation.” The plaintiff complained that “the former gift shop” had now been leased to an Italian restaurant.

At one time, a plaintiff’s security guard asked pedestrians crossing the plaintiff’s property where they were going. The defendants’ tenants complained and ultimately, the manager told the tenants that “their customers could continue to traverse the [plaintiff's] lot to access the [defendants'] property.”

The contemplated restaurant would have seating for 45 customers, plus counter service and would operate past 9:45 p.m., Monday through Thursday. The plaintiff alleged that none of the defendants’ other tenants operated that late at night. The defendants’ tenants are responsible for clearing snow and ice. Trucks, including refrigerated trucks, will make deliveries four times a week and refrigerated garbage room would be required for the restaurant. Moreover, a septic system would have to be upgraded to accommodate the restaurant. The plaintiff concluded that “the number of people, customers and employees of the restaurant, will be greater than the number of people” the plaintiff’s manager had seen in 18 years with other defendants’ tenants. The plaintiff’s existing stores include an “optician, a frame store and toy store that close about 6:00 p.m., and a deli that remains open until 8:00 p.m., and a market that closes at 7:00.”

The plaintiff further testified that members of the public traverse his lot and the defendants’ property and that he “permits such access as a matter of willing accord and neighborly accommodation….” The plaintiff denied that it interfered with pedestrians crossing its lot to the defendants’ lot because it was a “benefit to all the stores for the customers to cross and to shop.” The plaintiff confirmed that he had discontinued the security guard and his tenants “still benefit from shoppers going from one store to another.” Thus, he claimed that he permits patrons of other stores to traverse his property because of the “mutual benefit.” The plaintiff acknowledged there were a few instances when he deviated from such practice and explained the circumstances relating thereto.

Additionally, the plaintiff testified that he had commenced the subject action “to protect himself from liability, as well as to avoid additional expenses with regard to lighting his property, snow removal and security due to the increased traffic during late hours, beyond that which has existed for forty years.” The plaintiff “anticipated increased traffic of people visiting a successful restaurant will result in patrons parking in his lot, decreasing available spots for his tenants’ customers, thereby negatively impacting on his tenants and his business.” Parking on the plaintiff’s property had never been allowed by anyone other than the plaintiff’s tenants, employees and customers. The plaintiff also noted that the proposed restaurateur has a nearby restaurant “with cars or trucks delivering pizzas all afternoon.”

The defendants testified that there was no longer a lease with the restaurant, although they were still discussing a possible tenancy. He acknowledged that he was “unaware of a grant or permission by [plaintiff] to access the [defendants'] property, nor did he ever seek permission from [plaintiff], though [defendants'] tenants, employees, invitees, customers and delivery trucks have been traversing the [plaintiff's] property since at least the late 1970′s.”

The court found that the proposed restaurant would “vastly” exceed “the limits of any prior permissive use and such use must be enjoined.” It further found that the plaintiff had previously acted to “protect his property interest when others have ‘abused the privilege’ afforded them by his ‘neighborly accommodation.’” The court noted that the plaintiff had “consistently opposed any expansion of the unspoken, but nonetheless, [permitted] use granted by [plaintiff] to the public at large and to [defendants].”

The court held that the defendants failed to establish “by clear and convincing evidence hostility to rebut the permissive public use of the [plaintiff's] parcel,” i.e., the plaintiff’s conduct demonstrated “neighborly accommodation,” rather than “hostility.” Therefore, it found that “no prescriptive easement exists.” Moreover, even if the defendants had been able to establish a prescriptive easement, “the right acquired by prescription is commensurate with the right enjoyed” and “[i]f the proposed use exceeds any arguable right enjoyed by Defendant.”

Comment: Robert M. Calica of Rosenberg Calica & Birney, counsel to the plaintiff, observed that the prescriptive easement never ripened because his client established that “its conduct was a ‘neighborly accommodation’ which could now be revoked.” He also noted that this case is of interest because it confirms that an “intensification” of the use of an easement by prescription is impermissible and may be permanently enjoined.

Colin Realty Co., LLC v. Manhasset Pizza, Sup. Ct., Nassau Co., Index No. 6563/11, Decided Nov. 18, 2013, Murphy, J.

Scott E. Mollen is a partner at Herrick, Feinstein and an adjunct professor at St. John’s University School of Law.