C Broadway, LLC v. Alegre

Full title: C Broadway, LLC, Respondent, v. Evelyn Alegre, Appellant, et al.…

Court: Supreme Court, Appellate Term, Second Dept., 2nd, 11th, & 13th Judicial Districts

Date published: Apr 11, 2019

2019 N.Y. Slip Op. 68380 (N.Y. App. Term 2019)

Opinion

Motion No: 2019-00216 QC

04-11-2019

C Broadway, LLC, Respondent, v. Evelyn Alegre, Appellant, et al., Undertenants.

MICHAEL L. PESCE, P.J.

THOMAS P. ALIOTTA

DAVID ELLIOT, JJ.

DECISION & ORDER ON MOTION

Motion by appellant for a stay pending the determination of an appeal from a final judgment of the Civil Court of the City of New York, Queens County, entered November 14, 2018, and for related relief. The final judgment, after a nonjury trial, awarded possession to petitioner in a licensee summary proceeding. By order to show cause dated March 14, 2019, the parties were directed to show cause why the final judgment should or should not be summarily reversed and the petition dismissed on the ground, among others, that the proof at trial showed that appellant and her children have been in exclusive occupancy since 2004 and, as such, are not licensees.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, and upon the order to show cause and the papers filed by appellant and respondent in response thereto, it is

ORDERED that the motion for summary reversal is granted, the final judgment is summarily reversed, without costs, and the petition is dismissed; and it is further,

ORDERED that appellant's motion for a stay is denied as academic.

Inasmuch as appellant, the spouse of the former owner of the property, and her children have been in exclusive occupancy of the premises since her husband abandoned the family in 2004, she is not subject to removal in a licensee summary proceeding (see Kerrains v People, 60 NY 221 [1875]; Carbonella v Carbonella, 52 Misc 3d 141[A], 2016 NY Slip Op 51176[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]; Hok Kwan Chu v Lee, 39 Misc 3d 147[A], 2013 NY Slip Op 50859[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; Rodriguez v Greco, 31 Misc 3d 136[A], 2011 NY Slip Op 50696[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2011]; Vitarelle v Vitarelle, 21 Misc 3d 130[A], 2008 NY Slip Op 52045[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2008]; UHAB HDFC v Diaz, 10 Misc 3d 130[A], 2005 NY Slip Op 51957[U] [App Term, 1st Dept 2005]; City of New York v Utsey, 185 Misc 2d 715 [App Term, 2d Dept, 2d & 11th Jud Dists 2000]).

PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.

ENTER:

Paul Kenny

Chief Clerk