Opinion
2014-461 N C
05-01-2015
Lynne E. DiStasio, Appellant, v. Monica Macaluso Also Known as MONICA DiSTASIO, Respondent.
PRESENT: : , IANNACCI and GARGUILO, JJ.
Appeal from an order of the District Court of Nassau County, First District (Eric Bjorneby, J.), entered January 15, 2014. The order, upon a motion by occupant to dismiss the petition in a licensee summary proceeding, stayed the proceeding, on the court's own motion, pending the final resolution of a Supreme Court matrimonial action.
ORDERED that, on the court's own motion, the notice of appeal is deemed to be an application for leave to appeal, and leave to appeal is granted (see UDCA 1702 [c]); and it is further,
ORDERED that the order is reversed, without costs, the stay is vacated, and the matter is remitted to the District Court for the determination of occupant's motion to dismiss the petition.
In this summary proceeding, the petition, dated November 16, 2013, seeks to remove occupant on the ground that her license to occupy the premises had been revoked (RPAPL 713 [7]). Occupant moved to dismiss the petition for failure to state a cause of action. In support of the motion, occupant showed, among other things, that she was then married to petitioner's nephew and that she was the plaintiff in a divorce action against him; that she resides in the premises with her two minor children from the marriage; and that, on November 14, 2013, the Supreme Court had awarded her sole use and occupancy of the premises. Occupant claimed that her husband is the true owner of the house and that it is held in petitioner's name for convenience only. Petitioner opposed the motion, asserting that she is the deed owner of the premises; that, if ownership is in question, that is a question of fact to be determined in this proceeding; and that cases holding that a person cannot evict his or her spouse from the marital residence are inapplicable here, because neither spouse is the owner of the house.
After reviewing various cases, the District Court concluded that a family member should not be permitted to evict another family member from a marital residence and that it would be patently unjust to allow this proceeding to go forward while the matrimonial action is pending, without provision for maintenance or an alternative residence. Accordingly, the court did not grant or deny occupant's motion but, instead, on its own motion, stayed the proceeding pending the final resolution of the matrimonial action. Petitioner filed a notice of appeal from the District Court's order, which notice we treat as an application for leave to appeal (see UDCA 1702 [c]), and we grant leave (see Danzig Fishman & Decea v Morgan, 123 AD3d 968 [2014]).
In our view, it was an abuse of discretion for the District Court to stay this summary proceeding pending the final resolution of the matrimonial action. Occupant's defenses and the issue of title can be fully litigated in this proceeding, for the purpose of determining the right to possession ( see Nissequogue Boat Club v State of New York, 14 AD3d 542 [2005]; Chun Wah Lee v Insook Han, 39 Misc 3d 132[A], 2013 NY Slip Op 50480[U] [App Term, 2d, 11th & 13th Jud Dists 2013]; Decaudin v Velazquez, 15 Misc 3d 45 [App Term, 9th & 10th Jud Dists 2007]; Chopra v Prusik, 9 Misc 3d 42 [App Term, 2d & 11th Jud Dists 2005]), and, as petitioner has not been made a party to the Supreme Court action, the issues cannot be fully litigated in that action. Consequently, we reverse the order, vacate the stay, and remit the matter to the District Court for the determination of occupant's motion to dismiss the petition.
We note that if occupant is in exclusive possession of the property, she is a tenant at will and is not subject to removal as a licensee (Rodriguez v Greco, 31 Misc 3d 136[A], 2011 NY Slip Op 50696[U] [App Term, 9th & 10th Jud Dists 2011]; see also Hok Kwan Chu v Lee, 39 Misc 3d 147[A], 2013 NY Slip Op 50859[U] [App Term, 2d, 11th & 13th Jud Dists 2013]).
Marano, P.J., Iannacci and Garguilo, JJ., concur.
Decision Date: May 01, 2015