O'Neill v O'Neill
Annotate this CaseDecided on February 24, 2016
Civil Court of the City of New York, Queens County
Audrey O'Neill, Petitioner,
against
Michael O'Neill, John Doe and Jane Doe, Respondents.
74120/2015
Attorneys for petitioner:
Rappaport, Hertz, Cherson & Rosenthal
Attorney for respondent:
Legal Services Plan, Local 237 Welfare Fund
Jose Rodriguez, J.
Recitation, as required by CPLR section 2219(a), of the papers considered in the review of this motion to dismiss.
Papers Numbered
Notice of Motion...1
Affirmation in Opposition...2
Petitioner Audrey O'Neill is the owner of the subject premises located at 103-02 106th Street, Ozone Park, New York. The subject premises are not a multiple dwelling and not subject to rent regulation.The instant summary holdover proceeding was commenced in September 2015 by John O'Neill, petitioner's son, via power of attorney bestowed upon him by petitioner on December 2, 2013. Respondent is also petitioner's son. The petition alleges that respondent is in possession of the subject premises pursuant to an oral rental agreement. The petition further states that the term for which said premises were occupied by respondent expired on October 31, 2015. Respondent was served a Notice of Termination dated July 10, 2015 purporting to terminate the tenancy effective August 31, 2015.
Petitioner is 91 years old and no longer resides in the state of New York due to health issues. She has resided in California with her son John O'Neill since November 2013. Prior to relocating in California petitioner resided in the subject premises with her adult son Michael O'Neill, the respondent herein.
This proceeding first appeared on the court calendar on September 29, 2015. Respondent failed to appear and the matter was adjourned to October 27, 2015 for inquest. On October 27, 2015, Respondent's daughter, Fallon O'Neill, appeared alleging Respondent was in the hospital. The matter was adjourned. On December 22, 2015, Respondent appeared through counsel and the matter was again adjourned to February 9, 2016 for trial. On February 2, 2016, respondent filed the instant motion. All parties are represented by counsel.
Respondent moves this court seeking an order dismissing the proceeding or in the alternative appointing a Guardian Ad Litem (GAL) for respondent. Respondent argues that occupancy of the subject premises arose out of the parties' family relationship and that a landlord tenant relationship does not exist between the parties. In addition, respondent alleges that the predicate notice is insufficient because it is signed by petitioner's agent and is not accompanied by proof of the agent's authority. Furthermore, respondent argues that the predicate notice and petition indicate different dates of termination making the petition ambiguous as to whether the tenancy had been terminated prior to the commencement of this proceeding.In the alternative, Respondent moves this court to appoint a GAL for both Petitioner and Respondent. Petitioner opposes this motion, arguing that even though Petitioner and Respondent are blood relatives their relationship was that of landlord and tenant. Furthermore, Petitioner argues that neither party needs a GAL, citing a lack of an Adult Protective Services (APS) motion and documentation of any physical and/or mental health issues.
In an affidavit in support of the instant motion, Respondent's daughter, Fallon O'Neill, through a durable power of attorney from respondent, states that respondent has resided in the subject premises with his parents since 1963 when they first purchased the home. Ms. O'Neill resided in the subject premises with respondent and petitioner from infancy until age thirteen. She states that after vacating the premises respondent continued to reside in the home with petitioner as a family unit. She visited her father and granmother often and observed that they were socially and financially interdependent.
Use and possession of a family home is out of the jurisdiction of Civil Court. Rosenstiel v. Rosenstiel, 20 AD2d 71, 245 N.Y.S.2d 395 (1963). As a result, a summary holdover proceeding is inappropriate when the respondent is a "family member". Kakwani v. Kakwani, 40 Misc 3d 627, 967 N.Y.S.2d 827 (2013). A family member for the purposes of a summary proceeding can be a blood or legal relation but it can also include persons who reside in a shared home. Id. at 630. It typically "involves a far deeper and more permanent commitment than one based upon mere convenience [or] curiosity." Id. Other indicia of a true family relationship are characterized not only by duration but emotional and financial interdependence as well. Id. at 631, citing Braschi v. Stahl Assoc. Co., 74 NY2d 201 (1989). Courts have found "true family" in a number of non-traditional circumstances including a spouse occupying a marital home after the other spouse vacated (Matter of Brennecke v. Smith, 42 Misc 2d 935 [1964]), a partner in a long term romantic relationship (Minors v. Tyler, 137 Misc 2d 505 [1987]), minor stepchildren (Nagle v. Di Paola, 134 Misc 2d 753 [1987]), a same-sex couple (Braschi v. Stahl Assoc. Co., 74 NY2d 201 [1989]), adult children (Sirota v. Sirota, 164 Misc 2d 966 [1995]), and a sister-in-law (Kakwani v. Kakwani, 40 Misc 3d 627, 967 N.Y.S.2d 827 [2013]).If a person is not a family member but a mere tenant, then the party asserting the existence of a landlord/tenant relationship has the burden to prove said relationship. Kumro v. Slattery, 150 Misc. 269, 271 (1933).
In the instant case it is undisputed that Respondent and Petitioner cohabitated for over 30 years in the subject premises. Respondent's daughter alleges in her affidavit that in the thirteen plus years she resided in the premise she observed indicia of social and financial interdependence. It is not inconceivable that Petitioner and Respondent share meals, chores, and household expenses for the lengthy period that they resided together. Even setting aside Respondent's daughter's affidavit, as Petitioner requests in its opposition, there is no evidence that Petitioner and Respondent had a landlord/tenant relationship. There are no rent receipts, no [*2]emails, nor is there any other type of communication between the parties regarding rent having been paid. The only documents Petitioner submits are a self serving letter dated September 15, 2015, a date subsequent to the petition in the instant proceeding, and a purported rent demand notice alleged to have been served on February 6, 2016, during the pendency of this holdover proceeding.
Additionally, the Notice of Termination which serves as a predicate to the commencement of this holdover proceeding alleges that respondent's tenancy expired on August 31, 2015. However, the petition states that the tenancy expires on October 31, 2015, subsequent to the petition date. Service of a valid predicate notice is a prerequisite to the commencement of a statutory hold over proceeding. Chinatown Apts. v. Chu Cho Lam, 51 NY2d 786 (1980); Kaycee West 113th St. Corp. v. Diakoff, 160 AD2d 573 (1st Dept., 1990). A thirty day notice terminating a monthly unregulated apartment must state unequivocally that the landlord is electing to terminate the tenancy, that the tenant is required to surrender possession on a particular date which must be a date on which the term expires and that if the tenant does not quit the premises summary eviction proceedings will be commenced against the tenant. Matter of Arc on 4th St., Inc. v. Quesada, 112 AD3d 431 (1st Dept. 2013); Park Summit Realty v. Frank, 107 Misc 2d 318 (App. Term, 1st Dept. 1980) aff'd 84 AD2d 700 (1st Dept. 1980); aff'd 56 NY2d 1025 91982).
A petition in a holdover proceeding which failed to allege a landlord-tenant relationship, the terms of any lease under which the tenant was in possession, or any facts justifying the landlord's terminating the relationship of landlord and tenant, or the manner in which or the date when the lease was terminated, was held to be jurisdictionally defective.Rasch's Landlord and Tenant, 4th Ed., §41:24, citing Granet Const. Corp. v. Longo, 42 Misc 2d 812, 309 N.Y.S. 231 (Sup. Ct. 1964).
Based upon the above respondent's motion is granted and the petition is dismissed.
The foregoing constitutes the decision and order of the court.
Dated: Queens, New York
February 24, 2016
Hon. Jose Rodriguez
Judge, Housing Part
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