Baria v Lozada

[*1] Baria v Lozada 2023 NY Slip Op 51186(U) Decided on November 12, 2023 Civil Court Of The City Of New York, Queens County Schiff, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 12, 2023
Civil Court of the City of New York, Queens County

Iris Baria, Ileana Castellanos, Petitioners,

against

Carlos Lozada, Respondent.



Index No. L&T 311126/23

Logan J. Schiff, J.

Recitation of the papers considered in review of Respondent's pre-answer motion to dismiss pursuant to CPLR 3211(a)(1), (2), (3), (7), (8) and (10): NYSCEF Doc. Nos. 8-23.

BACKGROUND

Many of the facts in this licensee holdover are undisputed. Petitioner Ileana Castellanos and her mother Petitioner Iris Baria are the tenants of record in the subject rent-stabilized apartment in Flushing, New York, where they have resided since 2015 with Respondent Carlos Lozada. Respondent is the estranged partner of Ms. Castellanos and was never a party to the lease, nor does he claim to be an undertenant. The unmarried former couple have two minor children, who live with them in the premises. There is no pending family court petition, and the parties have yet to reach an agreement regarding custody or child support.

Respondent now moves to dismiss pursuant to CPLR 3211 for failure to state a cause of action, principally arguing that a summary proceeding may not be maintained against an immediate family member. Respondent posits that he meets the definition of a family member by virtue of the shared minor children in the household, from whom he will be separated should Petitioners prevail. According to Respondent, this proceeding is an improper end run around obtaining a custody order from family court, particularly given that Respondent might have succession rights to the apartment as a non-traditional family member should Petitioners vacate as part of any custody agreement. Respondent separately claims that service of the predicate ten-day notice to quit was improper because it was affixed to his bedroom door rather than to the entry door to the premises.

DISCUSSION

Contrary to Respondent's contention, there is no "familial exception" bar to maintenance of a summary eviction proceeding (see Heckman v Heckman, 50 NYS3d 793 [App Term, 2d Dept, 9th & 10th Jud Dists 2017]; Pugliese v Pugliese, 37 NYS3d 208 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]). There are limited circumstances where a respondent cannot be characterized as a licensee under RPAPL 713(7) solely by virtue of the familial relationship between the parties. These include a spouse, who is entitled to support in the absence of a "court [*2]decree or valid agreement between the parties" (Rosenstiel v Rosenstiel, 20 AD2d 71, 77 [1st Dept 1963]; cf. Halaby v Halaby, 44 AD2d 495 [4th Dept 1974] [summary proceeding maintainable against spouse following satisfaction of support obligation]), and a petitioner's minor children (see Heckman at 795; Family Court Act § 413]).

With respect to Respondent's status as an unmarried former partner of Petitioner Castellanos, New York law does not recognize common law marriage or make any provision for support so as to preclude the maintenance of a licensee holdover (see Sears v Okin, 847 NYS2d 899 [App Term, 2d Dept, 9th & 10th Jud Dists 2007]; Piotrowski v Little, 911 NYS2d 583 [Middletown City Ct 2010]; Landry v Harris, 856 NYS2d 498 [Civ Ct, NY Co 2008]; Blake v Stradford, 725 NYS2d 189 [Dist Ct, Nassau Co 2001]).

That being said, the presence of the parties' minor children in the apartment complicates the analysis. The children are not named in this proceeding, and any warrant of eviction that may issue will not be effective against them (see RPAPL 749(1)). Nonetheless, to the extent that custody remains unresolved, this court cannot sanction any outcome that could "have the effect of evicting [the] minor children" by virtue of rendering homeless a parent entitled to child support from a petitioner (Sears v Okin, 800 NYS2d 357 [App Term, 2d Dept, 9th & 10th Jud Dists 2004]. Therefore, while this proceeding may continue to trial, if Petitioners prevail execution of the warrant of eviction should be stayed until the court obtains confirmation that Respondent is not entitled to custody (see Sears v Okin, 847 NYS2d at 899). In the event Respondent is awarded custody, an eviction may not occur until family court determines if Respondent is entitled to child support, including any necessary allowance for alternative housing (see id.; Landry v Harris at 498; Soto v Soto, 781 NYS2d 592 [Dist Ct, Nassau Co 2004]), and if such support is awarded, the eviction may be further stayed if it is not timely paid (see Citi Land Servs., LLC v McDowell, 926 NYS2d 343 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).[FN1]

As for Respondent's contention that a licensee holdover is improper given his potential succession rights, this argument is unavailing. A landlord cannot evict the licensee of a rent-stabilized tenant until the tenant's rights have been terminated or ceased by virtue of a surrender (see Adelphi Assoc., LLC v Toruno, [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Nothing in the Rent Stabilization Code or case law, however, bars a rent-stabilized tenant in continuous occupancy from evicting a non-tenant family member with an unripened succession claim (see Matter of Jourdain v New York State Div. of Housing & Community Renewal, 159 AD3d 41 [2d Dept 2018] [succession rights vest after the tenant of record permanently ceases residing in the subject premises]).

Finally, the court rejects Respondent's argument that service of the notice to quit was facially defective because it was affixed to Respondent's bedroom door rather than the entry door to the premises. RPAPL 735, the applicable statute for service of a predicate notice in a licensee holdover under RPAPL 713(7), provides that if after reasonable application in hand service cannot be effectuated, service may be accomplished by "affixing a copy upon a conspicuous [*3]part of the property sought to be recovered or placing a copy under the entrance door of such premises " The statute does not define "conspicuous part of the property" as the exterior door to the apartment, nor have the courts adhered to such a rigid definition when placement on the front door is impractical or less preferable, so long as the papers are affixed to a conspicuous area of the property that is reasonably calculated to provide notice (see 156 Nassau Ave HDFC v Tchernitsky, 112 NYS 3d 859 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; Manhattan Realty Company v Goldman, 110 NYS3d 792 [Civ Ct, NY Co 2018]; 161 Williams Assocs. v Coffee, 122 Misc 2d 37 [Civ Ct, NY Co 1983]; cf. Back Glen, LLC v Giresi, 880 NYS2d 871 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]).

Here, in light of the parties' shared living arrangement, and in the absence of any specific denial of service of the notice to quit in Respondent's affidavit or assertion that Respondent's bedroom door is not a conspicuous part of the property sought to be recovered, Respondent's motion to dismiss must be denied (see Marmon Realty Group, LLC v Khalil, 148 NYS3d 822 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]; Citi Land Servs., LLC v McDowell, 926 NYS2d 343 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). The court notes that it will remain Petitioner's burden to prove service of a proper predicate notice at trial (see Mautner-Glick Corp. v. Glazer, 148 AD3d 515, 516 [1st Dept 2017]; LaManna v Didonato, 842 NYS2d 674 [App Term, 2d Dept, 9th & 10th Jud Dists 2007]).

CONCLUSION

The court has considered the remaining arguments in Respondent's motion and finds them to be without merit. Accordingly, Respondent's motion to dismiss is denied. The matter is hereby adjourned to January 17, 2024, for settlement or transfer to a trial part. Respondent is ordered to file an answer to the Petition by December 13, 2023.

This constitutes the decision and order of the court.

Dated: November 12, 2023
Queens, New York
Hon. Logan J. Schiff, J.H.C. Footnotes

Footnote 1:The parties are urged to reach an agreement regarding custody or to commence a proceeding in family court. Notwithstanding the power of this court to consider equitable defenses for purposes of determining the right to possession (see Carr v Carr, 187 NYS3d 464 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2023]), it is beyond the jurisdiction or expertise of this court to make determinations related to custody or child support, for which Family Court has exclusive original jurisdiction outside of the matrimonial context (see Family Court Act §§ 115 and 411).