Saoidoh v Saoidoh

[*1] Saoidoh v Saoidoh 2015 NY Slip Op 51730(U) Decided on November 30, 2015 Civil Court Of The City Of New York, Bronx County Vargas, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 30, 2015
Civil Court of the City of New York, Bronx County

Oumar Saoidoh, Petitioner,

against

Fatimata Saoidoh, KORTUME SAOIDOH, JOHN DOE and JANE DOE, Respondents.



L & T 052623/2015



Kathleen R. Bradshaw, Esq.

3114 East Tremont Avenue

Bronx, New York 10461

Gnoleba R. Seri, Esq.

32 Court Street, Suite 707

Brooklyn, New York 11201
Javier E. Vargas, J.

Notice of Motion, Affirmation & Exhibits Annexed.................................1

Affirmation in Opposition & Exhibits Annexed........................................2

Upon the foregoing papers and for the following reasons, the motion by Respondent Fatimata Saoidoh (hereinafter "Fatimata") to dismiss the instant holdover proceeding, pursuant to [*2]CPLR 3211(a)(5), is granted and the proceeding is hereby dismissed, without prejudice.

The following facts are essentially undisputed. Petitioner Oumar Saoidoh (hereinafter "Oumar") and Fatimata were married on June 8, 1995, in the Bronx, New York, and gave birth to their only daughter, Respondent Kortume Saoidoh, in August 1996, just over a year after their marriage. In 1999, Oumar and Fatimata decided to purchase their marital residence, the subject Premises, a three-family house located at 1747 Topping Avenue in the Bronx, New York. Apparently unbeknownst to Fatimata, on July 13, 1998, Oumar executed an Amendment to the underlying Purchase Agreement, wherein Fatimata's name was removed from the Purchase Agreement so that "Oumar Saoidoh [was] the only purchaser and sole party in this transaction." Withal, the purchase went through and the family resided together in the Premises from February 1999 until their separation. In the meantime, they rented a three-bedroom apartment on the third floor and the one-bedroom apartment located on the second floor, while occupying the three-bedroom Premises located on the first floor.

According to Fatimata, the monthly rent collected from their tenants at the Premises permitted them to cover the mortgage payments, property taxes and utility bills for the entire house, and provided sufficient revenues to make necessary improvements to the same. Indeed, in 2006, the parties also used their joint savings to purchase their "dream retirement house" in the Ivory Coast of Africa. Unfortunately, marital difficulties ensued in 2009, and Oumar filed for divorce against Fatimata in Bronx County, Supreme Court. By Judgment of Divorce (Leventhal, S.R.) dated March 19, 2009, the parties were divorced based on the ground of abandonment for a period of one or more years (see Domestic Relations Law § 170[2]), and Fatimata obtained custody of their child, Kortume, with Oumar having visitation rights as agreed upon between the parties and paying child support of $99.31 per week to Fatimata. This being an uncontested divorce, there was no apparent equitable distribution or, indeed, any mention of any marital property owned by the parties in the Judgment of Divorce.

Nevertheless, Fatimata and the parties' daughter, Kortume, continued living uninterruptedly at the Premises, while Oumar also resided at the Premises' one-bedroom apartment, which was vacated by the occupying tenant in 2011. On October 1, 2014, Oumar then commenced a holdover proceeding to evict Fatimata from the Premises, which proceeding was eventually discontinued in March 2015, without prejudice to the parties' continuing to grapple with the marital property issues in a separate legal proceeding. Apparently dissatisfied with that arrangement, on August 6, 2015, Oumar again served Fatimata with a Ten-Day Notice to Quit to terminate her and his nineteen-year old daughter's occupancy of the Premises within ten days after service of the Notice. Neither Fatimata nor Kortume moved out of the Premises in the appointed date.

As a result, by Notice of Petition and Petition dated September 8, 2015, Oumar commenced the instant holdover summary proceeding against his former wife and daughter, Fatimata and Kortume, to recover possession of the Premises, use and occupancy ("U & O") during the pendency of the proceeding at $1,000 per month, and reasonable costs and legal fees, pursuant to RPAPL 713(7), alleging that they were mere licensees whose license had been revoked and terminated by the owner Oumar, and who do not possess any right to the Premises. The terse Petition makes no mention whatsoever of the parties' previous marital and familial relationship, and describes the Premises as a three-family house "not subject to the Emergency Tenant Protection Act of 1974 and the Rent Stabilization Law of 1969, both as amended, as there are less that 6 residential units." On October 5, 2015, Fatimata and Kortume filed an Answer with Affirmative Defenses countering that there was never a license agreement or understanding between these previously married parties.

By Notice of Motion returnable October 29, 2015, Fatimata now moves for an order dismissing the holdover proceeding, pursuant to CPLR 3211(a)(5), on the grounds that the Petition fails to state a cause of action upon which relief could be granted because, pursuant to RPAPL 713(7), this licensee proceeding cannot be maintained against her who was the former wife of Oumar and partial owner of the Premises herself. Fatimata additionally affirms that she brought a proceeding against Oumar to reopen their divorce and request the equitable distribution of the Premises currently pending in Bronx County Supreme Court. In opposition, Oumar reiterates that he is the only owner and landlord of the Premises, and that Fatimata and Kortume are mere licensees in the apartment without his permission to continue residing there. This Court disagrees with Oumar.

RPAPL 713(7) provides, in part, that "after a ten day notice to quit has been served," a special proceeding may be brought against a "licensee of the person entitled to possession of the property at the time of the license, and (a) his license has expired, or (b) his license has been revoked by the licensor" (see Nauth v Nauth, 42 Misc 3d 672, 674 [NYC Civ Ct 2013]). While no explicit definition of "licensee" is provided in RPAPL 713(7), "a licensee is one who enters upon or occupies lands by permission, express or implied, of the owner, or under a personal, revocable, nonassignable privilege from the owner, without possessing any interest in the property, and who becomes a trespasser thereon upon revocation of the permission or privilege" (Minors v Tyler, 137 Misc 2d 505, 507 [NYC Civ Ct 1987], quoting Rosenstiel v Rosenstiel, 20 AD2d 71, 76 [1963]). Although licensee holdover summary proceedings are frequently brought against relatives, it is well-settled that a spouse may not be evicted in such a proceeding — absent any legal modification to the marital relationship — nor can other "family members," who have been judicially afforded rights beyond that of a licensee (see Braschi v Stahl Assoc. Co., 74 NY2d 201, 211 [1989] [gay lifetime partners may be entitled to succession and other tenancy rights]; Rosenstiel v Rosenstiel, 20 AD2d at 76 [estranged wife cannot be so evicted]; Kakwani v Kakwani, 40 Misc 3d 627 [Nassau Dist Ct 2013] [sister-in-law]; Williams v Williams, 13 Misc 3d 395 [NY Civ Ct 2006] [adult grandchildren]; DeJesus v Rodríguez, 196 Misc 2d 881 [NY Civ Ct 2003] [ex-girlfriend and minor children of the relationship]; Sirota v Sirota, 164 Misc 2d 966 [NY Civ Ct 1995] [adult children]; Landry v Harris, 18 Misc 3d 1123[A], 2008 NY Slip Op 50174[U] [NY Civ Ct 2008] [girlfriend and son]).

Applying these principles to the matter at bar, Fatimata has sufficiently established her entitlement to a dismissal of this licensee holdover proceeding against her and Kortume. With this proceeding, Oumar is improperly seeking to remove his former spouse and mother of his daughter from Premises which they both shared while married — and even after their divorce was finalized — for a total of 16 years in residence (see Rosenstiel v Rosenstiel, 20 AD2d at 76; Sirota v Sirota, 164 Misc 2d at 966). The record shows that the Premises appear to be marital property, having being acquired during the marriage, and that they were neither mentioned nor properly disposed off in the Judgment of Divorce (see Domestic Relations Law §§ 234, 236[B][1][c] ["marital property shall mean all property acquired by either or both spouses during the marriage * * *, regardless of the form in which title is held"]). Of course, the Supreme Court is the only one with subject matter jurisdiction to declare whether the parties' property is marital or separate property and which party should have ownership or exclusive use and occupancy of the Premises (id.; see Rosenstiel v Rosenstiel, 20 AD2d at 74). Contrary to Oumar's arguments, it is unclear why the Premises were not equitably distributed to either party in the Judgment of Divorce.

In light of the fact that the Premises were not legally distributed and that Fatimata and [*3]Kortume were part of the nuclear family and members of the household, they would appear to be entitled to equal ownership and/or tenancy rights as Oumar. Not only did Fatimata and Oumar live at the Premises as a married couple for ten years, and in separate apartments for six years after their divorce, but their daughter Kortume has lived there for most of her life. Thus, Fatimata and Kortume are not Oumar's licensees and cannot be evicted as such in this Housing Court proceeding (see DeJesus v Rodríguez, 196 Misc 2d at 881; Sirota v Sirota, 164 Misc 2d 966). This is a fortiori given the fact that the parties are already litigating their respective ownership rights to the Premises and other marital property in their pending matrimonial matter in the Bronx County Supreme Court.

In accordance with the foregoing, Fatimata's motion to dismiss is granted, and the proceeding is hereby dismissed, without prejudice. The foregoing constitutes the decision and order of the Court.

E N T E R:

Dated: November 30, 2015

Bronx, New YorkJ.H.C.