Mujahid v Scott
Annotate this CaseDecided on June 14, 2010
Civil Court of the City of New York, New York County
Jubae Mujahid, Petitioner,
against
Nkenge Scott, Respondent.
060235/2010
K.S. Ahluwalia, Hewlett, New York, for petitioner.
Goodfarb & Sandercock, LLP, New York City (Margaret B. Sandercock of counsel), for respondents.
Gerald Lebovits, J.
In this consolidated licensee holdover proceeding, petitioner, Jubae Mujahid, seeks a judgment for possession and money against Nkenge Scott and Mildred Baily, respondents and occupiers of 509 West 150th Street, 1st and 3rd floor apartments, in New York County. Respondents move to dismiss this proceeding on the basis that Nkenge Scott has an ownership interest in the building 509 West 150th Street in a constructive trust and, as a result, that she cannot be evicted in a licensee holdover proceeding.
Respondent's motion to dismiss under CPLR 3211 raises a single issue: whether respondents
are licensees under New York law, as alleged in the predicate notice and the petition.
[*2]
I. The Facts
The following facts come from the parties' papers and are not in dispute.
On November 16, 2004, petitioner and Scott entered into a security agreement concerning the purchase of 509 West 150th Street. Although poorly drafted and replete with ambiguities, the agreement provides that petitioner and Scott were "desirous in purchasing and investing in the premises'" (Security Agreement at "Whereas" No. 3) and that petitioner was to enter into a contract of sale with the vendor (Security Agreement at ¶ 1). Following the transaction, petitioner became the property's sole deed owner. The purchase was financed through a mortgage taken only in petitioner's name. Paragraph 7 of the agreement provides that Scott would be responsible to manage the property and to collect rent payments from tenants occupying units not the subject of this proceeding.
The agreement never refers to Scott as "owner" of the premises. But paragraph 7 provides that Scott would be responsible to pay two thirds of the monthly mortgage payments. At paragraph 8, the agreement notes that net sales proceeds from the property's eventual would be allocated to petitioner and Scott according to their proportional share of mortgage payments and expenses related to the property — one third to petitioner and two thirds to Scott.
Although the exact figures are in dispute, Scott made several monthly payments toward the
mortgage from 2005 until 2007 and incurred expenses, including utilities and payments to
various contractors, to manage the property. Copies of canceled checks made to the order of
petitioner under the description "509 W. 150 Mortgage"
show a total contribution of $103,968.32 on Scott's part. Since 2004, respondents have never paid rent for their occupancy. Scott stopped
making mortgage payments in 2007, causing a default under the parties' agreement. (See
Security Agreement at ¶10 [a].)
II. The Law
New York statutes do not codify the notion of "licensee." The definition " is instead left to the common law.'" (Rodriguez v Greco, 25 Misc 3d 1012, 1016 [Dist Ct, Nassau County 2009], quoting Suissa v Baron, 24 Misc 3d 1236 [A], 2009 NY Slip Op 51766 [U], *3 [Dist Ct, Suffolk County 2009].) It is generally understood that "a licensee is one who enters upon or occupies lands by permission, express or implied, of the owner, or under a personal, revocable, non-assignable privilege from the owner, without possessing any interest in the property . . . ." (Rosenstiel v Rosenstiel, 20 AD2d 71, 76 [1st Dept 1963].)
The occupation of land or buildings by permission and the absence of any interest therein on the occupier's part, whether ownership, leasehold, or otherwise, stand as the two defining characteristics of a common-law licensor/licensee relationship. Under these defining characteristics, respondents are not licensees. Two fundamental elements are absent in this case. [*3]
The first element is absent because the security agreement and the nature of the parties' relationship show that the parties never conceived respondents' occupancy as permissive in nature. In dealing with real property, the nature of the parties' relationship is not defined by "its characterization or the technical language used in the instrument, but rather the manifest intention of the parties." (Am. Jewish Theatre, Inc. v Roundabout Theatre Co., 203 AD2d 155, 156 [1st Dept 1994].) From the time of the agreement to the present, Scott has occupied the first-floor apartment. Scott and her grandmother, respondent Baily, have occupied the third-floor apartment. Despite petitioner's characterization of respondents as "licensee" occupants, the security agreement never provides that Scott would occupy the premises with petitioner's "permission," and no express licensing agreement has ever governed their occupancy. Management and mortgage expenses incurred by Scott from 2005 to 2007 are inconsistent with a permissive occupancy.
The second element is also absent because Scott holds an ownership interest in the property. The 2004 security agreement and Scott's contributions toward the mortgage and management expenses support this conclusion. Under the agreement, Scott was to contribute two thirds of monthly mortgage payments (Security Agreement at ¶ 7) and share proportionally in the property's net sales proceeds (Security Agreement at ¶ 8), and could veto any further encumbrances, sale, or transfer of the property by petitioner (Security Agreement at ¶10 [b]). Mortgage and management payments Scott made from 2005 to 2007 characterize her ownership. Petitioner's affidavit in opposition of this motion provides that respondent Scott's role as an "investor" ended when her mortgage contributions ceased in 2007.
Sufficient indicia of a constructive trust compels the conclusion that Scott continues to hold an ownership interest in the property. Four requirements must be met to impose a constructive trust against petitioner: (1) a confidential or fiduciary relationship, (2) a promise, (3) a transfer in reliance on the promise, and (4) unjust enrichment. (See e.g. Thomas v Thomas, 70 AD3d 588, 590-591 [1st Dept 2010].)The first element is satisfied because the 2004 security agreement created between the parties a relationship sufficiently close to inspire trust and confidence. (Id. at 591 ["We have not applied a rigid standard when identifying relationships that can be the predicate for imposition of a constructive trust."].) The second and third elements are satisfied because the 2004 security agreement establishes petitioner's promise to hold the property in trust for Scott and because Scott's expenses from 2005 to 2007 show reliance on this promise. The fourth element is satisfied because to permit petitioner to retain the benefits of Scott's mortgage and property expenses would constitute unjust enrichment, regardless of petitioner's continued sole liability under the mortgage. (See Forbes v Clarke, 194 AD2d 393, 393 [1st Dept 1993] ["The continuance of defendant's potential liability on the mortgage in the event of a default is not sufficient to defeat plaintiff's right to the imposition of a constructive trust."].)
Although this court does not decide that Scott has a constructive trust — only the Supreme Court has the equitable jurisdiction to decide that issue — this court finds that respondents are not licensees. [*4]
Respondents' motion to dismiss the proceeding is granted.
This opinion is the court's decision and order.
Dated: June 14, 2010
J.H.C.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
