Opinion
No. LT–001115–17/NA.
09-28-2017
Mansoor TAJ, Petitioner(s), v. Nabeela BASHIR, "John Doe" and "Jane Doe", Respondent(s).
David Gevanter, Esq., Lindenhurst, for Petitioner. Law Office of Tzvi Y. Hagler, P.C., Lynbrook, for Respondent.
David Gevanter, Esq., Lindenhurst, for Petitioner.
Law Office of Tzvi Y. Hagler, P.C., Lynbrook, for Respondent.
SCOTT FAIRGRIEVE, J.
The following named papers numbered 1 to 3 submitted on this Motion to Dismiss and Cross Motion for Summary Judgment on September 14, 2017
Respondent's Notice of Motion and Supporting Documents 1
Petitioner's Notice of Cross Motion and Supporting Documents 2
Opposition to Cross Motion and in further support of Motion 3
Petitioner, Mansoor Taj, is the co-owner of the premises located at 60 Clifford Street, in Lynbrook, New York. The other co-owner is his brother, Irfan Taj, who is not a party to this proceeding. Irfan Taj is married to Respondent Nabeela Bashir. Petitioner has commenced this holdover proceeding against the Respondent, his sister-in-law.
The Notice of Petition, filed in the Nassau County District Court on March 2, 2017, seeks possession of the 1st floor of 60 Clifford Street, Lynbrook, New York. The Petition seeks to evict Respondent as a licensee. The Petition states that a 10 day notice to quit was served upon Respondent on February 7, 2017.
Respondent moves to dismiss the Notice of Petition and Petition, as follows:
A. Pursuant to CPLR § 3211(a)(2) on the grounds that the premises are subject to a pending divorce action between Irfan Taj and Respondent in the Nassau County Supreme Court, under Index No. 201249–16;
B. failure to state a valid cause of action; and
C. failure to name a necessary party, to wit, her husband who is a co-owner of the property.
Respondent also seeks an order:
D. staying these proceedings pending the resolution of the divorce action; and
E. awarding Respondent counsel fees in the sum of $10,000.00.
The within motion is supported by the Affidavit of Respondent, sworn to on August 14, 2017. Respondent states that she married Irfan Taj on April 19, 2012. The premises was purchased on November 13, 2014. Respondent claims that the premises was purchased with "significant contributions from me and my family." Respondent further states that the purpose of the purchase was to provide a family home for Respondent, Irfan Taj, and her son from a previous marriage. Respondent attaches copies of checks in the sum of $30,000.00 to support her contention that she and her family contributed toward the purchase of the house.
Subsequently, Irfan Taj commenced a divorce action against Respondent on May 6, 2016, which is still pending. Respondent writes that the premises is subject to equitable distribution because it is marital property.
Respondent establishes that, in an order dated September 9, 2016, Justice Hope Schwartz Zimmerman granted her request in the Supreme Court divorce action for exclusive use and occupancy of the premises. Justice Zimmerman ruled:
"The branch of the motion seeking exclusive occupancy of the marital residence is granted in light of the husband's lengthy and continued absence from the home and the strain and turmoil which would result from his return, Block v. Block, 245 A.D.2d[1st Dept.1997] ). The wife has made sufficient demonstration of necessity for such drastic relief in order to protect the safety of person or property, ( Domestic Relations Law § 234 ; Joseph v. Joseph, 230 A.D.2d 716 [2d Dept.1996] )."
In a subsequent order of Justice Zimmerman, dated June 30, 2017, the Court denied the application to stay the proceeding pending before this court, brought by Petitioner, because Petitioner was not served with the order to show cause to stay these proceedings in the District Court.
Respondent alleges that Petitioner was added as a co-owner because her husband didn't have the income to purchase the premises without Petitioner's assistance. Respondent points to the following deposition testimony (Transcript page 138, lines 5–11), of Petitioner to support this assertion:
"Q. Why were you a co-borrower?
A. He could not buy with his income a small store. His income is not up to buy a house and so they need somebody who has income. I have income on papers. So I joined with him and I just signed the paper and nothing else."
Respondent states the following concerning the premises in paragraphs 13, 14, 15, 16 and 17, of her Affidavit:
"Despite the allegations by Petitioner, me and my husband, co-owner of the property, have always lived at the subject premises, along with my son, and paid the mortgage, while Petitioner was merely listed on the deed for convenience purposes, to ensure that my husband and I were approved for a mortgage.
In fact, it was my husband and myself who paid the mortgage. Each and every month, the mortgage would be paid from the marital money earned by my husband, the co-owner, and not Petitioner Plaintiff.
It is convenient and highly suspect that Petitioner, and not his brother who is my husband, brought this summary proceeding, as this issue needs to first be addressed by the Supreme Court in the matrimonial action.
Based on the aforementioned, it is clear the marital residence is subject to equitable distribution, and therefore said issue must first be decided in Supreme Court before any summary proceedings for eviction can be commenced.
Furthermore, due to the familial relationship between Petitioner and myself, not to mention my husband being the co-owner of the marital residence, this proceeding must be dismissed, or at least stayed until the conclusion of the divorce."
Petitioner cross moves for summary judgment. The Affidavit of Mansoor Taj, sworn to on August 28, 2017, is submitted in support. Petitioner states that co-owner Irfan Taj has not lived with Respondent for several years. Petitioner states that he does not have any duty to support Respondent and that Respondent has not paid any of the costs or expenses associated with the premises. Petitioner posits that Respondent should be evicted through summary proceedings because:
"Respondent wrongfully claims she cannot be evicted because she is a family member, whose status exempts her from licensee status. According to my attorney, the definition of family is when parties lived together as a family unit with some continuity. I never lived with Respondent, NABEELA BASHIRI, or her husband. We are not part of the same family. She is not related to me by blood and we have not had any relevant relationship. She has only been freeloading at the Premises. It is time for her to move on and give me possession of the Premises.
I have no duty to support my brother, co-owner, IRFAN TAJ. As such, there was and is no duty to support his ex-wife. The relationship does not give an expectation of a licensee status. Therefore, whether Respondent is a licensee is not a genuine issue of fact.
My brother, co-owner, IRFAN TAJ, filed for bankruptcy. My attorney advises me that the bank will likely only proceed against me if the mortgage is not paid. Respondent does not pay any rent and has never paid rent. She has only been taking advantage of her situation as my brother's wife and making arguments in Court to try to stall so she can stay there without paying anything while doing damage to my property.
According to my attorney, Summary Judgment must be granted when there are no issues of fact, as there are herein. In this case, the facts are clear. Respondent is not part of my "family unit". I don't owe her anything and I should not have to burdened with her bills. I am currently divorced from my own wife and have to vacate my marital home in 30 days. I need the Premises occupied by RESPONDENT for my own use."
In reply to the cross motion by Petitioner, for summary judgment, Respondent submits the decision of Hon. Robert E. Pipia, of this court, dated August 21, 2017, under Index No. CV–002071–17 entitled Mansoor Taj, Plaintiff v. Nabeela Bashir, Defendant. Plaintiff sued defendant for conversion for unpaid rent which defendant collected from tenants living on the second floor of the premises. The decision states that defendant collected $8,400.00 from the second floor tenants. Defendant cross moved for summary judgment seeking, in part, a stay of the matter before Judge Pipia pending resolution of the matrimonial action. Judge Pipia stayed the conversion action pending resolution of the divorce action.
Issue
Should the instant summary proceeding be stayed or dismissed due to the pending Nassau County Supreme Court divorce action between Respondent and her husband Irfan Taj?
Based upon the above, the answer is yes, and this court stays the within summary proceeding pending resolution of the divorce action between Respondent and her husband Irfan Taj.
The evidence shows that the premises may constitute marital property which is subject to equitable distribution. The property was acquired during the marriage, and it further appears that Respondent and/or her family contributed toward the purchase of the premises. It has also been established that Respondent and her son from a prior relationship have been living at the premises, as a marital residence.
Justice Zimmerman has ordered that Respondent, Nabeela Bashir, have exclusive occupancy of the marital residence.
Judge Pipia has stayed the conversion action pending the resolution of the marital action.
In Yu–Dan Wong v. Kenneth Ming Wei Wong, 128 AD3d 536, 10 NYS3d 30 (1st Dept, 2015), the lower court had stayed the holdover proceeding brought by the husband's brother to evict the wife from a cooperative apartment which she had shared with her husband and child. The Appellate Division, First Department upheld the stay because:
"A stay is warranted to avoid plaintiff's eviction pending resolution of the divorce proceeding (see Ricatto, 4 AD3d at 515, 772 N.Y.S.2d 705 ; see also Societe Anonyme Belge D'Exploitation De La Nav. Aerienne [Sabena] v. Feller, 112 A.D.2d 837, 839–840, 492 N.Y.S.2d 756 [1st Dept 1985] ). Domestic Relations Law § 236(B)(5)(f) permits a court to issue an order regarding the use and occupancy of the marital home, "without regard to the form of ownership of such property." As Supreme Court noted, it has yet to be determined in the divorce action whether the apartment is marital property and, if it is, how it might be equitably distributed. Appellant has not shown that the property is not marital property, as there is evidence in the record that defendant acquired the property during his marriage with plaintiff (see Domestic Relations Law § 236[1][c] ; see also Massimi v. Massimi, 35 AD3d 400, 402, 825 N.Y.S.2d 262 [2d Dept 2006], lv. denied 9 NY3d 801, 840 N.Y.S.2d 566, 872 N.E.2d 252 [2007] )."
In Soto v. Soto, 4 Misc.3d 881, 781 N.Y.S.2d 592 (Nassau Ct, Dist Ct 2004), the landlord commenced summary proceedings to remove her brother's estranged wife, a holdover tenant. The respondent moved in part to stay the summary proceeding pending resolution of the divorce action between respondent and her estranged husband. The court stayed the summary proceedings because the respondent had occupied the premises as her marital residence with her minor child.
The case of Halaby v. Halaby, 44 A.D.2d 495, 355 N.Y.S.2d 671 (4th Dept, 1974) cited by Petitioner, is clearly distinguishable. In Halaby, the wife had obtained an order of the Family Court concerning the husband's obligation to support the wife. Based upon this scenario, the Court permitted the husband to bring summary proceedings to terminate the wife's occupancy of the husband's property as a licensee because the support issue had been fully litigated and adjudicated. In the case at bar, the issues of support and equitable distribution have not been litigated and adjudicated. Therefore, the summary proceedings before this court, between Petitioner and Respondent are stayed, pending resolution of the divorce action.
Conclusion
Respondent's motion is granted to the extent that the summary proceedings at bar, are stayed pending resolution of the Nassau County Supreme Court divorce action. All other relief is denied.
The cross motion for summary judgment is also denied.
So Ordered.