Nurse v Dacres

[*1] Nurse v Dacres 2020 NY Slip Op 51107(U) Decided on October 1, 2020 Civil Court Of The City Of New York, Kings County Barany, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 1, 2020
Civil Court of the City of New York, Kings County

Mortimer Nurse as ADMINISTRATOR OF THE ESTATE OF RUPERT ANDERSON NURSE, Petitioner (Landlord),

against

WINSTON VALLEY DACRES & MARK DACRES, Respondent (Licensee) and 'JOHN DOE' AND 'JANE DOE' Respondents-(Underlicensee)



070625/19
Kenneth T. Barany, J.

Recitation, as required by CPLR § 2219(a), of the papers considered in the review of Respondent's Motion for partial Summary Judgment of their First Affirmative Defense and Petitioner's Motions for Summary Judgment.

PAPERS NUMBERED

Respondents' Notice of Motion, Affirmation in Support, Affidavit in Support & Exhibits ("A" - "P") 1, 2,3

Petitioner's Notice of Motion, Affirmation in Support of Petitioner's Motion, Affidavit in Support of Motion & Exhibits ("A" — "O") 4,5,6

Respondent's Affirmation in Opposition to Petitioner's motion 7

Petitioner's Affirmation in Opposition to Respondent's Motion 8

Upon the foregoing cited papers, the Decision and Order is as follows:

This licensee proceeding was commenced by the Administrator of the Estate of the deceased owner Rupert Anderson Nurse. It is brought against the adult relatives of one Sadie Vera Nurse who was the former wife of the deceased owner and who herself passed away in 2003. Neither of the respondents is a blood relative of the deceased owner and the proceeding was adjourned by the prior Jurist in this Part for the parties to each move for summary judgment on what is a legal issue to wit: do the respondents qualify for the "family" exemption under RPL §713(7) as narrowly developed by case precedent. If found to be entitled to this exception to a licensee holdover it would require the petitioner to commence an ejectment action in Supreme Court to regain possession of the subject premises instead of a "summary proceeding". This issue is contained in respondent's First Affirmative Defense in their Amended Answer (hereinafter "Answer").

In addressing the legal issue presented, the court is compelled to paraphrase a common saying that "no extraordinary deed goes unpunished". Notably, it has already been determined by the Supreme Court (affirmed by the Appellate Division Second Department) that respondent Winston Valley Dacres applied "undue influence" upon the owner Rupert Anderson Nurse prior to his death, while incompetent, to get him to transfer 50% ownership of the Subject Building (a private house) to respondent Winston Valley Dacres. The salient facts in chronological order are as follows:

(a) November 25, 1970 Rupert Anderson Nurse and Sadie Vera Nurse purchase the Subject Building as husband and wife (Exhibit "H" of respondents' motion);(b) Sadie Vera Nurse is the mother of petitioner from her marriage to the deceased owner as well as the mother of respondent Winston Valley Dacres from a prior marriage[FN1]; (c) In 1998 Sonia Dacres wife of respondent Winston Valley Dacres emigrates to the United States and lives with Rupert Anderson Nurse and her mother in law Sadie Vera Nurse until the death of Sadie Vera Nurse in 2003. She then continued to live with Rupert Anderson Nurse until his death in 2016. Sonia Dacres passes away in 2018[FN2]; (d) Until 2003 when her mother in law Sadie Vera Nurse passed away Sonia Dacres received both free rent and $300.00 per week to do chores, cook etc. After the death of Sadie Vera Nurse in 2003 she continued to receive free rent but no weekly salary and claimed to have continued to take care of Rupert Nurse up until his death (see Exhibits "I" to respondents' motion)[FN3]; (e) 2010 — Respondent Winston Valley Dacres emigrates to the United States at the age of 56 and begins residing with his wife Sonia Dacres and owner Rupert Anderson Nurse at the subject premises. He requests Rupert Anderson Nurse to sponsor him for emigration and Rupert Anderson Nurse agrees (see Exhibit "K" to respondents' motion)[FN4]; (f) 2013- Mortimer Nurse and Hyacinth Nurse, the actual son and daughter of Rupert Anderson Nurse commence a Supreme Court Article 81 proceeding seeking to be appointed Co-Article 81 Guardians on his behalf. They also seek to set aside, on the grounds of undue influence, by respondent Winston Valley Dacres, a deed dated July 19, 2013 under which respondent Winston Valley Dacres had Mortimer Nurse transfer 50% ownership of the subject building to respondent Winston Valley Dacres. This application was opposed by both respondent Winston Valley Dacres and his wife Sonia Dacres which resulted in a full hearing of the application;(g) May 28, 2014 — Supreme Court issues an Order appointing Mortimer Nurse and Hyacinth Nurse as Co-Guardians for Rupert Anderson Nurse (Exhibit "I" to petitioner's cross-motion);(h) June 23, 2015 — The Supreme Court issues an Order setting aside the deed which conveyed a 50% ownership of the subject building to respondent Winston Valley Dacres. The deed is set aside upon grounds of "incompetence and undue influence" (Exhibit "J" to petitioner's motion)[FN5];. This Decision is upheld on appeal by Decision of the Appellate Division Second Department dated April 11, 2018 (Exhibit "L" to petitioner's papers)[FN6] ; (i) January 22, 2016 — Rupert Anderson Nurse passes away (Exhibit "K" to Petitioner's motion);(j) June 2, 2016 — The Supreme Court issues an Order appointing Mortimer Nurse as Administrator of his father's estate [Petitioner] (Exhibit "M" to Petitioner's papers);(k) August 18, 2016 — Respondent Winston Valley Dacres and his wife (deceased as of October 30, 2018) file their lawsuit for compensation for their services seeking millions of dollars (Exhibit "N" to petitioner's motion).

RPAPL §713 is titled "Grounds where no landlord-tenant relationship exists" and states in its preamble as follows:

"A special proceeding may be maintained under this article after a ten-day notice to quit has been served upon the respondent in the manner prescribed in section 735 upon the following grounds:"

In subsection "7" of RPAPL §713 it states in pertinent part that a ground upon which a special proceeding may be commenced where there is no landlord-tenant relationship is where a [*2]respondent:

"[H]e is 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 ."

Almost immediately after this section's enactment it was utilized by tenants and homeowners to remove family members whom they no longer wanted to allow to reside in their homes or apartments. Eventually a very limited exception was carved out for a legal wife to whom the tenant or homeowner had an ongoing obligation to support and maintain a marital home. The seminal case is Rosenstiel v Rosenstiel, 20 AD2d 71 (1st Dept., 1963). In that case a husband sought to evict his wife from the marital residence which was owned in his name only. The court in Rosenstiel characterized the issue before it as:

"whether or not ..Real Property Actions and Proceedings Law [RPAPL] §713, subd. 7 may be applied to authorize the maintenance of summary proceedings to evict a wife whose rights as such have not been annulled or modified by any court decree or special agreement"

The Court in Rosenstiel initially concerned itself with the resulting deprivation of jurisdiction from Supreme Court and Family court should issues relating to domestic relations be allowed resolution in housing court summary proceedings. As noted by the Court:

" it would require a clear manifestation of legislative intent to render the statute so applicable. Statutory enactments purporting to cover certain rights and obligations of a husband and wife, one to the other, and the civil remedies available with respect thereto have been codified in the Domestic relations Law, the Civil Practice Law and Rules and the Family Court Act, and thereby the general jurisdiction and responsibility in this filed have been committed to the Supreme Court and the Family Court which are properly fitted and equipped to handle the myriad pf problems which may arise .."" The construction of the statute to apply to authorize proceedings by a husband against his wife would confer jurisdiction upon the Civil Court of the City of New York and upon City Courts, Justices' Courts and District Courts throughout the state ."

The Court then went on to highlight the uniqueness of a spousal relationship vis a vis a licensee proceeding:

"The occupation of the marital home by the wife as such is not, however, a possession existing by virtue of the "permission" of her husband or under a "personal" and "revocable privilege" extended by him. On the contrary, her possession of the premises exists because of special rights incidental to the marriage contract and relationship. As long as the marriage relationship stands, unabridged by court decree or valid agreement between the parties, the husband has the obligation by virtue thereto to support and maintain his wife".

Even where a respondent qualifies as a spouse, the use of a licensee proceeding is permitted where the relationship no longer remains "unabridged by court decree or valid agreement between the parties", see Halaby v Halaby, 44 AD2d 495 (4th Dept., 1974) (Husband can bring licensee proceeding against wife who agreed in Family Court to vacate by a date certain and received a set financial award in divorce proceeding); Tausik v Tausik[FN7] . 11 AD2d 144, (1st Dept., 1960), aff'd 9 NY2d 664, 173 NE2d 51, 212 NYS2d 76 (1961). In the case at bar the deceased owner owes no ongoing obligation to respondents to maintain a marital home nor does he owe them any financial obligation[FN8] .

Moreover, the protections afforded a legal wife prior to settlement of the marital issues have not been extended to other so-called "family" members. In Heckman v Heckman, 55 Misc 3d 86,50 (App. Term, 2nd Dept., 2017) the Court allowed the eviction of a Daughter-In-Law by the daughter of the deceased owner in her capacity as Trustee. After acknowledging the spousal exceptions carved out over time as a result of Rosenstiel based upon legal obligations, the court noted:

"However, in situations in which such an obligation did not exist or has been fully satisfied, appellate courts have found the existence of a license and allowed the maintenance of summary proceedings by a husband and wife (citations omitted) and by a decedent's estate against the decedent's cohabitant"

The court added: "while recognizing that there are familial relationships that will often prevent an occupant from fitting into a category of respondent subject to eviction pursuant to RPAPL 713 (or for that matter RPAPL 711) we explicitly hold that, where, as here, it is clear that an occupant does fit into one of the RPAPL 711 or 713 categories, there is no "familial exception" bar to the maintenance of a summary proceeding."

In the case at bar there is no financial obligation on the part of the Estate of the deceased [*3]owner with respect to respondent Winston Valley Dacres or his adult son respondent Mark Dacres. In fact, there is no familial relationship at all. Respondent first occupied the subject premises at age 56, seven years after his mother's death to wit; the person who created the tenuous connection between him and the deceased owner. The fact that his now deceased wife took care of his mother for money and free rent followed by her caring for petitioner for free rent in no way creates a family relationship between non-blood relatives.

If anything, respondent Winston Valley Dacres through his actions of exerting undue influence and seeking monetary compensation for alleged familial duties has established a complete lack of a close and loving family connection. This distinction was aptly recognized in the context of a succession issue to a regulated apartment by the Hon. J. Stoller in Cornfeld v Bhuiyan, 2020 NY Misc. LEXIS 320 (Civ Ct. NY Co.). [Where the Surrogate Court invalidates a will based upon "undue influence", no "Brashi" succession attaches and the party claiming such a connection is merely a caretaker].

Based on all of the foregoing the court holds that respondents are not entitled to the "family" exception to RPAPL §713(7) and that petitioner is permitted to use this summary proceeding as the forum to seek repossession of the subject premises. Therefore, respondents' First Affirmative Defense is stricken. The court also strikes respondents' Second, Third, Sixth, Seventh, Eighth and Tenth Affirmative Defenses for the reasons outlined hereafter.

The Second Affirmative Defense attempts to raise an issue regarding the predicate notice and its failure to comply with RPAPL §713. It is clear from the courts holding herein vis a vis the First Affirmative Defense, that the predicate notice satisfies the requirements of RPAPL §713. Even a cursory review of the notice demonstrates sufficient factual allegations to serve as a basis for a licensee holdover. It states from whom the license was obtained, the fact that it terminated upon the death of the former owner and that no further permission for occupancy has been granted. Furthermore, it specifically requires the respondents "to quit, vacate, and surrender possession of the subject premises to the landlord" by a date certain.

The Third Affirmative Defense contains one sentence consisting of "this court lacks personal jurisdiction over the respondents". The courts decades ago espoused the doctrine of law that a pleading that only cites general conclusions is insufficient as a matter of law. See Kalmanash v. Smith, 291 NY 142, 153 (1943). Bare legal conclusions without any factual underpinning are insufficient to make out an affirmative defense, see Robbins v Growney, 229 AD2d 356, 358 (1st Dept. 1996).

Moreover, if this is an attempt to raise an issue regarding service it fails to meet the requirements under law as well. It is incumbent upon a party claiming a traverse defense to provide detailed factual allegations sufficient to rebut the statements contained in the affidavit of the process server (see Scarano v. Scarano, supra). A party asserting a jurisdictional defense has the burden of proof (see Jacobs v. Zurich Insurance Co., 53 AD2d 524 (2nd Dept. 1976); ACT Props., LLC v. Garcia, 102 AD3d 712 (2nd Dep't 2013)). For these very reasons the Seventh Affirmative defense must also be stricken. That Affirmative defense simply alleges that "the respondents were not properly served with the predicate notices and notice of petition and [*4]petition herein". No facts whatsoever are alleged refuting the affidavits of the process server, just general conclusions.

Respondents' Sixth Affirmative Defense claims lack of standing on the part of petitioner to commence these proceedings. In fact, petitioner is cloaked with full authority to bring this proceeding. As the court appointed administrator of the estate of Mortimer Nurse, which is the true deed owner of the subject building, he has standing.

Respondents' Eighth Affirmative Defense is grounded in an allegation of "overcharge" in the use and occupancy sought by petitioner. Such an allegation would apply only to a regulated tenancy. In fact, respondents' position has been, as noted above, that no tenancy existed and that they are "family" members occupying in that capacity. Notably RPAPL §741(5) allows a petitioner to seek "fair value" i.e market rate for the use and occupation of premises when no "rent "is required, subject of course to a petitioner establishing the actual "fair value". It follows, therefore, that no "overcharge" exists to the evidentiary establishment of a market use and occupancy. Respondents of course always retain the right to challenge the validity of the amount of the requested use and occupancy as they have in their Fourth Affirmative defense or to seek an offset as they have in Ninth Affirmative Defense based upon alleged breach of the warranty of habitability[FN9] . The court has not struck those Affirmative Defenses and, as noted to the extent below, are reserved by respondents[FN10] . Respondents also reserve their Fifth Affirmative Defense to any claim for legal fees asserted by petitioner. In keeping with respondent's position of a lack of a landlord tenant relationship, that Affirmative Defense asserts that no valid lease, contract or statute provides petitioner the right to recover legal fees.

Respondent's Tenth Affirmative Defense is grounded in an allegation of abuse of process due to the commencement and discontinuance of two earlier holdovers (077074/16) and (053041/19). Notably, however, the first holdover was answered by respondents alleging a now judicially voided claim of ownership. The second holdover which years later was mistakenly commenced upon an allegation of tenancy was withdrawn without prejudice (see two attorney stipulation dated 3/19/19 annexed as part of Respondent's "B" in support of their motion). This withdrawal without prejudice is actually noted within the allegations comprising this Affirmative defense, accordingly, based upon the procedural history between the parties no abuse of process exists.

For all of the foregoing reasons petitioner is awarded summary judgment as to possession of the premises against respondents Winston Valley Dacres and Mark Dacres with the issuance of the warrant forthwith, execution stayed through the latter of October 31, 2020 or any [*5]applicable legislative, executive or court administrative stays due to the COVID epidemic. As to respondents "John Doe" and Jane Doe" for whom respondents' counsel did not appear, no other adult individuals other than the named respondents have appeared throughout the pendency of this case. Furthermore, no other occupants were mentioned to the court by either side throughout the conferences that were scheduled. OCA currently has a hold on entering default judgments against non-appearing respondents. Therefore, petitioner may either serve and file a notice of discontinuance against these additional respondent designations if no other occupants of the subject premises exist, or petitioner may move on eight days written notice to John Doe and Jane Doe once the prohibition has been lifted, for an inquest as to these respondents.

Finally, petitioner did not just move for summary judgment on the legal issue underlying respondents' First Affirmative Defense, but outright summary judgment in the form of judgments of possession. As no request for a monetary judgment was submitted as well, nor supportive documentation addressing the issue of use and occupancy, any monetary claim of petitioner is severed for a plenary action and reserved by petitioner subject to the defenses raised by respondents in their Fourth, Fifth and Ninth Affirmative Defenses.

This constitutes the Decision and Order of the Court.

SO- ORDERED

DATED October 1, 2020

____________________

KENNETH T. BARANY

J.H.C Footnotes

Footnote 1:Respondent Winston Valley Dacres keeps pointing to the fact that Mortimer Nurse is a half-blood relative (same mother) to bolster his attempt to get this proceeding dismissed. That argument ignores the fact that Mortimer Nurse is not suing in his individual capacity but rather on behalf of the Estate of Rupert Anderson Nurse who was not a blood relative to respondents. The issue being addressed is the alleged relationship between these respondents and the deceased owner and whether it justifies the "family" exception to licensee proceedings as fully discussed below.

Footnote 2: Until 2002 she resided on the second floor and then moved to the subject premises third floor in 2003.

Footnote 3: As a result of not getting paid for their alleged "family" obligations both Sonia Dacres and her husband Winston Valley Dacres filed suit in 2016 against the estate of the deceased owner seeking monetary compensation for their services in the millions of dollars (see Exhibit "N" to petitioner's cross-motion). That lawsuit is still pending.

Footnote 4: Notwithstanding respondent's constant presentation of himself as the "stepson" to the deceased owner, no formal Adult Adoption occurred under DRL§111(4). Furthermore, there is currently no ongoing financial obligation that the estate of Mortimer Nurse owes to respondents.

Footnote 5: The Supreme Court in so ruling found the evidence of respondent and his wife to be "contradictory and incredible".

Footnote 6: The Appellate Division noted that respondent and his wife provided 24-hour care to Rupert Anderson Nurse. The Appellate Division, however, quoted Matter of Walther, 6 NY2d 49, 53 that in establishing "undue influence" the actions of respondent and his wife "amounted to a moral coercion, which restrained independent action and destroyed free agency, or which, by opportunity which could not be resisted, constrained [Rupert Anderson Nurse] to do that which was against his free will and desire, but which he was unable to refuse or too weak to resist".

Footnote 7: In Rosenstiel there had been no determination or provision for the wife's right of support prior to the summary proceeding.

Footnote 8: Respondents note that within the small print of the multi-page document that respondent Winston Valley Dacres had the deceased elderly owner sign, in support of the respondent's immigration application, was the potential for a financial contribution on the part of the deceased owner vis -a vis respondent. That provision required the deceased owner to make up any short fall between the respondent's income and 125 percent of the Federal Poverty Guidelines provided respondent became a permanent resident. Ignoring for the moment the issue of undue influence, respondent never established that this provision was triggered by his becoming a permanent resident and earning less the amount which would have potentially triggered contribution. Furthermore, any such financial obligation would have ceased upon the death of the owner, (Exhibit "K" to respondent's motion).

Footnote 9: It is interesting to note that the violation report supporting the warranty of habitability claim shows no violations issued between 1986 and 2019 until the summary litigation between the parties went into full litigation mode.

Footnote 10: To the extent that the Fourth Affirmative Defense also alleges a lack of agreement by respondents to pay rent or use and occupancy, this court has already noted the right of the petitioner to seek use and occupancy without an agreement.