Abdul-Karim v Mitchell

[*1] Abdul-Karim v Mitchell 2019 NY Slip Op 50111(U) Decided on January 25, 2019 Justice Court Of The Town Of Greenburgh, Westchester County Orden, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 25, 2019
Justice Court of the Town of Greenburgh, Westchester County

Nasiba M. Abdul-Karim, Petitioner,

against

Devery V. Mitchell, Respondent.



18-090728



Anthony J. Siano, Esq, PLLC

Anthony J. Siano, Esq.

Attorney for Petitioner

333 Westchester Avenue Suite S302

White Plains, NY 10604

Cindy Brown, Esq.

Tilem & Associates, PC

Attorney for Respondent

188 East Post Road

White Plains, NY 10601
Bonnie L. Orden, J.

On or about September 28, 2018, petitioner (hereinafter Wife) commenced this summary proceeding to evict respondent (hereinafter Husband) from the parties' former marital residence. On October 19, 2018, this court granted Wife's petition, awarding her a holdover judgment and a warrant of eviction, to be executed on November 8, 2018. On November 7, 2018, Husband moved by order to show cause (Brathwaite, J.) to vacate the holdover judgment and warrant of eviction, and to dismiss the petition for failure to state a claim. The order to show cause contained a temporary stay of the holdover judgment and warrant of eviction pending determination of Husband's motion. Wife opposed Husband's motion and requested attorney's fees.

The court denies Husband's motion and directs him to vacate the subject premises by February 4, 2019.

Factual & Procedural History

On February 1, 2016, the parties were married. There are two unemancipated children of [*2]the marriage. Pursuant to a deed recorded on August 24, 2016, the parties owned the marital residence, located at 11 Leone Close, Scarsdale, New York, as tenants by the entirety. It is undisputed that the parties lived together in the marital residence with their children. As detailed further below, in or around April 2017, approximately eight (8) months after the parties purchased the marital residence, Husband moved out for eight (8) months. In May 2017, Husband's 15-year-old daughter from a prior marriage temporarily moved into the subject marital residence; Wife permitted that temporary housing accommodation while the daughter's mother/custodial parent, who was receiving child support from Husband, found other living arrangements.[FN1] As noted, Husband was not living in the subject marital residence at that time.

Approximately two-and-a-half years into their marriage, the parties entered into a separation agreement dated June 5, 2018, by which they agreed, in pertinent part, that Wife would have sole ownership of the marital residence and would be solely responsible for the mortgage and all other costs associated with that ownership, and that the parties would share legal custody of the children of the marriage, but Wife would have primary physical custody. Pursuant to Article 14, Section A, of the separation agreement, Father was entitled to have access to the subject children every other weekend and was required to "pick up from and drop off the children at Mother's residence for all of his regular access periods." On June 7, 2018, Wife commenced a proceeding in Supreme Court, Westchester County, for a divorce and ancillary relief on the ground of irretrievable breakdown of the marriage. By deed recorded on July 12, 2018, ownership of the martial residence was transferred from the parties jointly to Wife alone.

On or about August 1, 2018, Husband moved by order to show cause in Supreme Court, Westchester County, to vacate the separation agreement arguing, in pertinent part, that he was fraudulently induced into signing the agreement, that the underlying paperwork for the transfer of the deed of the marital premises to Wife was signed while he was under duress, and that he entered into the agreement "unknowingly and based on false and incorrect information." Wife cross-moved to evict Husband from the marital premises and for attorney's fees. In an affidavit supporting the cross-motion, and opposing Husband's motion, Wife stated, in pertinent part, that Husband moved out of the subject premises in or around April 2017 and remained out for about eight months, but moved back in around January 2018 as a "temporary arrangement." According to Wife, the temporary arrangement was intended to be approximately three months to allow Husband time to secure new housing, but Husband ultimately refused to leave.

At a proceeding on September 6, 2018, the Supreme Court (Colangelo, J.) denied Husband's motion to vacate the separation agreement finding that (1) Husband failed to establish any fraud or duress, (2) Husband had ample time to review the agreement and to consult an attorney and, in fact, affirmatively represented in the separation agreement that he had read it and had had an opportunity to consult with an attorney, and (3) upon the court's independent review, the separation agreement was not unconscionable. The Supreme Court noted that the proposed divorce judgment had been submitted to the court [*3]and would be signed promptly.[FN2]

During the September 6, 2018 proceeding, the Supreme Court denied, without prejudice, that branch of Wife's cross-motion which was to evict Husband from the former marital premises finding that Wife was raising a landlord/tenant eviction matter pursuant to Real Property Actions and Proceedings Law ("RPAPL") which belonged in local court. As for Wife's request for attorney's fees, the court "in light of the spurious nature of [Husband's] claims and his failure to promptly vacate the marital residence, as he was required to do under the terms of the separation agreement," awarded Wife $2,500 if Husband did not vacate the subject property within 10 days. The Supreme Court set forth its September 6, 2018 rulings in an order dated October 9, 2018. The order reads, in pertinent part, that Husband's motion to vacate the separation agreement "is denied for the reasons set forth in the transcript," Wife's cross-motion to evict Husband is denied without prejudice, and Wife is awarded $2,500 in attorney's fees if Husband failed to vacate the marital residency by September 16, 2018. It is undisputed that Husband did not vacate the subject premises by that date and still resides in the marital premises.

Present Proceeding

On or about September 28, 2018, Wife commenced the instant summary proceeding for a judgment awarding sole possession of the subject premises and a warrant of eviction. It is undisputed that Wife had served Husband with a 10-day notice to quit. On October 19, 2018, this court granted Wife's petition and issued a holdover judgment and a warrant of eviction to be executed on November 8, 2018. On November 7, 2018, Husband moved by order to show cause (Brathwaite, J.) to vacate the holdover judgment and warrant of eviction pursuant to NY Civil Practice Law and Rules ("CPLR") § 5015(a)(4) for lack of jurisdiction and to dismiss Wife's petition for failure to state a claim. The order to show cause contained a temporary stay of the holdover judgment and warrant of eviction pending determination of Husband's motion.

In a supporting affirmation, Husband's counsel argues that pursuant to CPLR § 5015 (a)(4) this court should vacate the holdover judgment and warrant of eviction for lack of jurisdiction because Wife's petition is fatally defective for failing to allege facts showing that this is a summary proceeding wherein a landlord/tenant relationship exists and a licensee's license has been revoked. Counsel reasons that Husband cannot be evicted as a mere licensee because he did not enter the premises as a licensee, rather he owned the property jointly with Wife and his right to occupy stemmed from the familial relationship, not from Wife's permission. Counsel argues that the parties never agreed that Wife would reside in the premises to the exclusion of Husband. Counsel notes that Wife's claims are more appropriately raised in an ejectment proceeding, which may not be heard by the instant court. In an affidavit in support, Husband argues that (1) he never intended to transfer ownership of the marital premises to Wife before his 15-year-old daughter graduated from high school, (2) Wife fraudulently induced him to sign the separation agreement and the deed, and had his signature on the deed fraudulently notarized by her brother outside of Husband's presence, and (3) since the parties owned the martial residence as tenants by the entirety, there was no landlord/tenant relationship between the [*4]parties and Wife could not maintain the instant summary proceeding to evict him.

In opposition to Husband's motion, Wife argues that this court should deny Husband's application (1) for lack of merit given that the parties were divorced by judgment of the Supreme Court and Wife has exclusive ownership of the property, and (2) based on the res judicata and collateral estoppel effect of the decision of the Supreme Court (Colangelo, J.) announced at the September 6, 2018 proceeding and memorialized by order dated October 5, 2018, Wife has a right to exclusive possession of the subject premises. Wife also argues that this court should award her $2,500 in attorney's fees consistent with Justice Colangelo's directive on September 6, 2018, since Husband failed to vacate the subject premises within 10 days. Moreover, Wife argues that given Husband's failure to pay that $2,500, the court should deny his present application for unclean hands.

In reply, Husband argues that res judicata and collateral estoppel are inapplicable herein because his motion does not raise the issue of whether he was fraudulently induced to sign documents; rather, his motion challenges whether this court lacked jurisdiction to issue the holdover judgment and warrant of eviction and whether the petition should be dismissed for a fatal defect. Husband maintains that the transfer of ownership of the subject residence did not create a landlord/tenant or licensor/licensee relationship and, as proof, points out that there was no lease between the parties and that he never paid Wife rent. He argues that it was incorrect for Judge Colangelo to state at the September 6, 2018, proceeding that he was required to vacate the marital residence "under the terms of the separation agreement" because, in fact, there was no such provision in the separation agreement.

Analysis

The court denies Husband's motion to vacate the holdover judgment and warrant of eviction and to dismiss the petition. RPAPL § 713(7) provides, in relevant part, that a summary proceeding to recover possession of real property may be maintained where the respondent is a licensee of the person entitled to possession of the property and the license has been revoked by the licensor (RPAPL § 713[7]). Husband's reliance on Rosenstiel v Rosenstiel (20 AD2d 71, 76 [1st Dept 1963]), and its progeny, to argue that a spouse may not be evicted in a summary licensee holdover proceeding is misplaced. Rosenstiel v Rosenstiel (20 AD2d at 76) stands for the principle that absent any legal modification to the marital relationship a spouse may not be evicted in a summary licensee holdover proceeding (see Rosenstiel at 76) (emphasis added). Here, the parties' marital relationship was legally terminated by judgment of divorce dated October 5, 2018, which incorporated but did not merge with the parties' separation agreement dated June 5, 2018. Pursuant to the separation agreement, Wife has sole ownership of the marital premises, and sole obligation on the mortgage and all other costs associated with that ownership.[FN3] By deed recorded on July 12, 2018, ownership of the martial residence was, in fact, transferred from the parties jointly to Wife alone. Under these circumstances, the court finds that Wife properly commenced the instant summary proceeding.

No argument can be made on this record that it was the parties' intention and [*5]understanding that Husband would continue living in the former marital home. The separation agreement does not obligate Wife to support Husband with housing, nor does it obligate her to provide housing for his teenage daughter from a previous marriage, for whom Husband is paying child support to that child's mother. Rather, the separation agreement reflects the parties' agreement and understanding that Husband would vacate the subject premises. For example, Article 14, Section A of the agreement requires that Father, in exercising his right to have access to the parties' children, "pick up from and drop off the children at Mother's residence for all of his regular access periods" (emphasis added). Given such language, and Wife's exclusive ownership, it was reasonable for Justice Colangelo to conclude at the September 6, 2018, proceeding in Supreme Court that Husband was required to promptly vacate the marital residence under the terms of the separation agreement.

The court is mindful that summary eviction proceedings are seldom found to be the proper method of removing a family member from the family home. However, given the peculiar facts of this proceeding, the court finds that Husband may properly be evicted pursuant to RPAPL § 713(7) as a licensee whose license has been revoked. During the first year of marriage, Husband moved out of the marital home for eight months, after which Wife permitted him to reoccupy the home temporarily, for three months, so that he could find alternate housing. Husband ultimately refused to leave, and now challenges Wife's right to evict him citing to the familial relationship as a barrier to her right to evict him by summary proceeding. Given that the parties entered into a separation agreement and the Supreme Court signed a judgment of divorce, the court finds Husband's reasoning to be strained and incredulous.

Based on all of the foregoing, particularly the termination of the parties' short marital relationship, and the language in the separation agreement as to Wife's exclusive ownership of the marital home and Father's access to the children, this court denies Husband's motion to vacate the holdover judgment and warrant of eviction and to dismiss the petition (cf. Halaby v Halaby, 44 AD2d 495 [4th Dept 1974] [Husband's petition to recover possession of marital residence from Wife should have been granted where Husband fully satisfied obligation of support, including the provision of housing]). Contrary to Husband's claim, Wife is not required to file a costly action of ejectment to recover possession of the subject premises, nor must she file in any other court; rather, Wife properly commenced the instant summary proceeding in this court (see Uniform Justice Court Act § 204; Halaby v Halaby, 44 AD2d 495 [4th Dept 1974]; see generally Sears v Okin, 16 Misc 3d 134[A] [App Term, 2d Dept 2007]; Valentino v Reyes, 2006 NY Misc LEXIS 4021, *5-6 [Civ Ct, New York County]).

Under the circumstances, it is ORDERED and ADJUDGED, that the respondent's motion to vacate the holdover judgment and warrant of eviction, both dated October 19, 2018, and to dismiss the petition, is denied in its entirety; and it is further,

ORDERED and ADJUDGED that the respondent is directed to vacate the former marital premises known as 11 Leone Close, Greenburgh, New York, 10607, on or before February 4, 2019; and it is further,

ORDERED and ADJUDGED that respondent is directed to pay the petitioner an award of $2,500 for attorney's fees; and it is further

ORDERED and ADJUDGED that a warrant of eviction shall issue forthwith, with [*6]execution on February 4, 2019, consistent with the terms of this decision, order and judgment.

The foregoing constitutes the DECISION, ORDER and JUDGMENT of this court.

Dated: January 25, 2019

Honorable Bonnie L. Orden

Greenburgh Town Justice

Town of Greenburgh Justice Court

White Plains, New York 10607 Footnotes

Footnote 1:See n 2 Wife's affidavit in opposition to Husband's order to show cause and in support of her cross-motion in Supreme Court, Westchester County.

Footnote 2:The court (Colangelo, J.) signed the judgment of divorce on October 5, 2018.

Footnote 3:The record in the Supreme Court divorce proceeding reveals that Wife was the sole contributor to the down payment of the marital residence.