Upon the following papers numbered 1 to 6 read on this motion by respondent to dismiss Notice of Motion/Order to Show Cause and supporting papers 1; Notice of Cross Motion and supporting papers_; Answering Affidavits and supporting papers 3; Replying Affidavits and supporting papers 5; Filed papers_; Other exhibits 2, 6; 4. (and after hearing counsel in support of and opposed to the motion) it is, ORDERED that this motion is granted and the petition is dismissed.Petitioner, (correctly known as Ilse Brady), the original owner of the property known as 114 Bayway Avenue, Brightwaters, New York 11718, deeded the subject premises to the respondent Edward J. Lumer (petitioner’s son-in-law) and his wife Pamela E. Lumer (petitioner’s daughter) by deed dated May 9, 2009 while retaining a life estate therein. It is not disputed that the respondent and his wife resided at the subject premise with their two children since 2009 and at the time of the conveyance the Lumer’s took a mortgage on the subject premises in the approximate amount of $190,000.00 to build an extension on the property in order for petitioner to continue to reside there. Subsequently, on or about October 2018, the respondent commenced a divorce action against Pamela Lumer in the Suffolk County Supreme Court and that action is presently pending before the Honorable Glenn A. Murphy. The petitioner now seeks to evict Mr. Lumer from the subject premises pursuant to RPAPL 713 (7) on the ground that he is a merely a licensee whose license has been revoked.Initially, and contrary to the respondent’s assertions, the fact that the he is a remainderman does not preclude him from being dispossessed from the subject premises as a life tenant has the right to exclude all other from the possession of the subject premises during his or her life and the remainderman or reversioner has no right to possession of the premises for the duration of the life tenancy (Fallorino v. Fallorino, 56 Misc.3d 67 [App. Term, 9th & 10th Jud. Dists.]; see, Thorn v. Stephens, 169 Misc.2d 832, affd 236 AD2d 464). However, since it is undisputed that the respondent and his wife and children have resided in the subject premises with the petitioner since 2009 under the same household, the respondent cannot be recognized as a licensee notwithstanding the absence of any support obligation as his occupancy clearly arose solely out of the family relationship. Consequently, the familial exception constitutes a bar to his eviction (Heckman v. Heckman, 55 Misc.3d 86 [App. Term, 9th & 10th Jud. Dists.]; see, Lally v. Fasano, 23 Misc.3d 938 [Nassau Dist. Ct. 2009]). In any event, even assuming the familial exception is inapplicable herein, it is readily apparent under the circumstances that the respondent cannot be properly held to be a licensee and the Court finds the petitioner’s affidavit attempting to characterize the nature of respondent’s occupancy as shared rather than exclusive wholly disingenuous (Carbonella v. Carbonella, 52 Misc.3d 141[A] [App. Term, 2nd, 11th & 13th Jud. Dists.]; Sherhan v. Numyal Food Inc., 20 Misc. 3d 40 [2nd & 11th Jud. Dists.]). Furthermore, the Court notes that since respondent is a joint owner of the property in question, his reversionary interest constitutes marital property and the issue of occupancy and possession of the marital home should be tried in the pending matrimonial action (Soto v. Soto, 4 Misc. 3d 881 [Nassau Dist. Ct. 2004]). To hold otherwise would permit the respondent’s wife, through her mother, to potentially obtain an unfair advantage regarding the division of the marital home as well as custody of the children through a Court that lacks subject matter jurisdiction over these issues (Rosenstiel v. Rosenstiel, 20 AD2d 71 [1st Dept.]; Billips v. Billips, 189 Misc.2d 144 [Civ. Ct. NY Co. 2001]).The respondent’s request for attorney’s fees is denied.Dated: March 22, 2019
