Opinion
2007-524 S C.
Decided October 9, 2008.
Appeal from a final judgment of the District Court of Suffolk County, Fifth District (James P. Flanagan, J.), entered March 20, 2007. The final judgment, after a nonjury trial, awarded possession to petitioner in a summary proceeding brought pursuant to RPAPL 713 (7).
PRESENT: McCABE, J.P., TANENBAUM and MOLIA, JJ.
Final judgment reversed without costs and petition dismissed.
In this summary proceeding brought pursuant to RPAPL 713 (7), petitioner alleged in the petition that occupant, his half-sister, resides in the subject house as a licensee and that he had terminated her license. At trial, petitioner claimed that occupant had entered into occupancy with the permission of their father, who resided in the house, and that occupant's license terminated when petitioner received a Supreme Court judgment awarding him possession and a warrant as against their father. Occupant denied that she was a mere licensee and claimed that she had paid rent and taxes. After trial, the court ruled in favor of petitioner, finding that occupant's right to reside in the premises derived solely through the parties' father, that occupant did not have exclusive possession, that she had paid no rent, and thus that petitioner established that occupant was a mere licensee. Accordingly, the court awarded petitioner a final judgment of possession. We reverse.
Petitioner failed to establish that occupant was a mere licensee. There was no proof at trial that occupant and her father did not have exclusive possession of the house ( see Sherhan v Numyal Food, Inc. , 20 Misc 3d 40 [App Term, 2d 11th Jud Dists 2008]). Further, the proof at trial, and particularly the evidence showing that occupant had, with petitioner's knowledge, paid the taxes on the house for three years and that petitioner had applied $2,500 that he, individually, owed to occupant toward "rent", established that occupant was not in possession as a mere licensee of the parties' father, but rather that petitioner had acquiesced in her occupancy and had treated her as a tenant, together with their father ( see Adrian v Zukerman , 16 Misc 3d 1110 [A], 2007 NY Slip Op 51378[U] [2007]). In these circumstances, occupant was entitled to a 30-day notice (Real Property Law § 228; see 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 11th Jud Dists 2000]). Since petitioner failed to serve such a notice, the final judgment is reversed and the petition dismissed.
McCabe, J.P., Tanenbaum and Molia, JJ., concur.