Qian "Llily" Zhu v Xiao "Joy" Hong Li

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[*1] Qian "Llily" Zhu v Xiao "Joy" Hong Li 2021 NY Slip Op 50089(U) Decided on February 5, 2021 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 5, 2021
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHELLE WESTON, J.P., DAVID ELLIOT, WAVNY TOUSSAINT, JJ
2020-624 RI C

Qian "Lily" Zhu, Appellant,

against

Xiao "Joy" Hong Li, Respondent.

Qian "Lily" Zhu, appellant pro se. Jacobi, Sieghardt, Bousanti, Piazza & Fitzpatrick, P.C., (Mark S. Piazza of counsel), for respondent.

Appeal from a final judgment of the Civil Court of the City of New York, Richmond County (Remy Smith, J.), entered November 9, 2020. The final judgment, upon a decision of that court dated May 1, 2020, after a nonjury trial, dismissed the petition in a summary proceeding brought pursuant to RPAPL 713 (10).

ORDERED that, on the court's own motion, the notice of appeal from the decision dated May 1, 2020 is deemed a premature notice of appeal from the final judgment entered November 9, 2020 (see CPLR 5520 [c]); and it is further,

ORDERED that the final judgment is affirmed, without costs.

Petitioner commenced this summary proceeding by order to show cause in lieu of a notice of petition (see CPLR 403 [d]) pursuant to RPAPL 713 (10) against respondent, her mother, seeking to be restored to the house in which she had previously resided with respondent. After a nonjury trial, at which both parties were represented by counsel, the Civil Court dismissed the petition, finding that petitioner did not establish a tenancy and that, in any event, she surrendered any rights she had.

Contrary to petitioner's arguments, the petition was properly dismissed. First, upon a review of the record, we find that petitioner was a licensee and not a tenant because, among other things, she was not given exclusive possession of designated space in her mother's home (see Andrews v Acacia Network, 59 Misc 3d 10 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]; Federation of Orgs., Inc. v Bauer, 6 Misc 3d 10 [App Term, 2d Dept, 9th & 10th Jud Dists 2004]). A licensee cannot maintain an unlawful entry and detainer proceeding (see Andrews v Acacia Network, 59 Misc 3d at 12; Padilla v Rodriguez, 61 Misc 3d 133[A], 2018 NY Slip Op 51471[U] [App Term, 1st Dept 2018]; World Evangelization Church v Devoe St. Baptist [*2]Church, 27 Misc 3d 141[A], 2010 NY Slip Op 50996[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]). In any event, respondent demonstrated that petitioner agreed to accept $6,000 to vacate the premises. On or about April 1, 2020, respondent transferred $5,000 to petitioner when petitioner moved all of her belongings to her car. Respondent gave petitioner an additional $1,000 in cash when petitioner signed a surrender agreement dated April 1, 2020. Thus, even if petitioner's interest in the subject property was something more than a license, she surrendered it for consideration.

Petitioner, now pro se, also asserts on appeal that her attorney failed to adequately represent her at trial. "[I]n the context of civil litigation, an attorney's errors or omissions are binding on the client and, absent extraordinary circumstances, a claim of ineffective assistance of counsel will not be entertained" (Mendoza v Plaza Homes, LLC, 55 AD3d 692, 693 [2008] [internal quotation marks omitted]; see Hudson City Sav. Bank v Bomba, 149 AD3d 704 [2017]). Petitioner not only failed to assert any extraordinary circumstances, but also failed to set forth any arguments or facts which would have altered the outcome had they been presented at trial.

Accordingly, the final judgment is affirmed.

WESTON, J.P., ELLIOT and TOUSSAINT, JJ., concur.


ENTER:
Paul Kenny
Chief Clerk
Decision Date: February 5, 2021

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