Cudar v O'Shea

[*1] Cudar v O'Shea 2009 NY Slip Op 51337(U) [24 Misc 3d 129(A)] Decided on June 25, 2009 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 25, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., GOLIA and RIOS, JJ
2008-778 RI C.

Frank Cudar, Respondent,

against

Elizabeth O'Shea and KEVIN O'SHEA, Appellants.

Appeal from a final judgment of the Civil Court of the City of New York, Richmond County (Marina Mundy, J.), entered January 14, 2008. The final judgment, after a nonjury trial, awarded possession to petitioner in a holdover summary proceeding.

Final judgment reversed without costs and petition dismissed.

In this holdover proceeding, petitioner Frank Cudar, who was the original tenant of record of the subject rent-controlled apartment, seeks to recover possession of the premises from his ex-wife, appellant Elizabeth O'Shea, and her son, Kevin O'Shea. Petitioner alleges that they were month-to-month subtenants of his and that he terminated their subtenancy.

The proof at trial established that appellant Elizabeth O'Shea moved into the subject apartment in 1969 following her marriage to petitioner. Petitioner and Ms. O'Shea cohabited in the marital residence for 35 years until August 2004, when petitioner was excluded from the apartment pursuant to an order of protection issued by the local criminal court. On December 21, 2006, petitioner and Ms. O'Shea were granted a judgment of divorce; however, the divorce decree failed to address the rights of the parties relative to possession of the marital residence or its contents (see generally Domestic Relations Law §§ 234, 236 [B]).

Ordinarily, the matter of occupancy and possession of the marital home should be determined in the divorce action (Rosenstiel v Rosenstiel, 20 AD2d 71, 77 [1963]).

Contrary to the finding of the Civil Court, petitioner failed to demonstrate the existence of a rental agreement with appellants (cf. Halaby v Halaby, 44 AD2d 495 [1974]). When Ms. O'Shea moved into the apartment in 1969, she did so as petitioner's spouse, and as such was entitled to possession, use and occupancy of the premises. "To say that a person is entitled to possession, use and occupancy is to say that that person is a tenant therein and is entitled to all the rights of the tenancy then in existence between the landlord and tenant . . ." (Clarke v Morris, 46 Misc 2d 476 [1965]).

New York City Rent and Rehabilitation Law (Administrative Code of City of NY) § 26-403 (m) broadly defines a "tenant" to include any person "entitled to the possession or to the use or occupancy of any housing accommodation." Under the terms of this provision, Ms. O'Shea became the rent-controlled tenant upon her marriage to petitioner and cohabitation with him in [*2]the subject premises. As petitioner's spouse, Ms. O'Shea had an equal right to possession of the marital residence, and whether she personally paid the rent or not for the apartment is irrelevant on the question of her status as a rent-controlled tenant (Matter of Herzog v Joy, 74 AD2d 372 [1980], affd 53 NY2d 821 [1981]).

Consequently, under the circumstances of this case, petitioner could not seek the removal of his ex-wife and her son in a summary proceeding. Accordingly, the final judgment is reversed and the petition is dismissed.

Pesce, P.J., Golia and Rios, JJ., concur
Decision Date: June 25, 2009