Opinion
LT-004472-18NA
10-25-2018
Camille STANISLAUS as Co-Executrix of the Estate of Ann R. Stanislaus, Petitioner(s), v. Orrin STANISLAUS and "John Doe" and "Jane Doe", Respondent(s).
Edward M. Rosenthal, Esq., attorney for Petitioner Orrin Stanislaus, Respondent pro se
Edward M. Rosenthal, Esq., attorney for Petitioner
Orrin Stanislaus, Respondent pro se
Scott Fairgrieve, J.
Background
Petitioner commenced this holdover proceeding against Respondent Orrin Stanislaus concerning 280 Princeton Road, 2nd floor, Rockville Centre, New York 11570. The Petition alleges that Petitioner is the Co-Executrix of the Estate of Ann R. Stanislaus, which owns the premises and is also the landlord.
The Petition states that Respondent is a tenant of the premises having entered into possession under an oral lease but no date is given when the oral lease was made. The Petition further alleges that the term of the oral lease, which is month to month, expired on June 30, 2018.
The Petition avers that a 30 day notice was served on Respondent terminating the tenancy on June 30, 2018. A review of the file by the court demonstrates that a copy of the 30 day notice was not filed. Also this court checked the scanned documents for this proceeding which again demonstrates no 30 day notice being filed.
Respondent appeared pro se and failed to file a written answer.
Trial Decision
Respondent is the brother of the Co-Executrix and the son of the decedent Ann R. Stanislaus. Respondent testified that he has lived at the premises for decades.
A holdover proceeding may be commenced in this family situation because there are no issues involving support. See Heckman v. Heckman , 55 Misc 3d 86, 50 NYS3d 723 (App Term 9th & 10th Jud Dists, 2017), holding that there is no familial exception which barred a summary proceeding where the Respondent is a licensee.
In the case at bar, the Petitioner failed to prove a landlord/tenant proceeding as alleged in the Petition. No proof was offered to demonstrate an oral or written lease. No proof was presented demonstrating that rent was paid. Thus, Respondent has the status of a licensee because the mother allowed Respondent to live in the house without paying rent. See Federation of Organizations, Inc. v. Bauer , 6 Misc 3d 10, 788 NYS2d 806 (9th & 10th Jud Dists 2004). Mislabeling Respondent as a tenant when in fact Respondent is a licensee is a jurisdictional defect requiring dismissal of this proceeding. See Potts v. Thomas , 58 Misc 3d 311, 66 NYS3d 410 (Dist Ct, Nassau Co, 2017) holding:
"Every petition in a summary proceeding must state the respondent's interest in the premises and respondent's relationship to the petitioner with regard thereto. The foregoing is a jurisdictional requirement. See RPAPL § 741(2) ; Underhill v. Cohen , 61 Misc. 627, 114 N.Y.S. 115 (App. Term 1909).
Claiming that Respondent Maria Thomas is a licensee, is a jurisdictional defect. Since Maria Thomas is a tenant, she is entitled to a 30 day notice. See RPAPL § 711 and RPL § 228. However, in the instant case, Respondent Maria Thomas was only served with a 10 day notice, as a licensee."
In Federal Nat. Mortg. Ass'n v. Simmons , 48 Misc 3d 24, 12 NYS3d 487 (App Term, 1st Dept 2015), the Court held that a licensee holdover proceeding cannot be maintained where a landlord/tenant relationship existed. See also , Retained Realty Inc. v. Zwicker , 46 Misc 3d 133(A), (App Term, 1st Dept) holding that:
"We agree that a licensee holdover proceeding, predicated upon a 10-day notice to quit, does not lie in the facts and circumstances of record, where respondent Zwicker entered into possession of the apartment premises as a tenant pursuant to a proprietary lease agreement (see Federal Home Loan Mtge. Assn. v. Perez , 40 Misc 3d 1 [App Term 9th and 10th Jud. Dists 2013] )."
Since Respondent is a licensee and not a tenant, this matter is dismissed.
An additional ground for dismissal is the failure of Petitioner to file the 30 day notice with the court to demonstrate that it was properly served on Respondent. Service of a proper notice in a holdover proceeding is a jurisdictional defect. In Rasch's Landlord & Tenant including Summary Proceedings, Fifth Edition, Hon. Robert F. Dolan, § 30:56 , the following appears:
"The service of a proper notice against a holdover is a jurisdictional fact, which must be properly pleaded and proved. If the notice is defective or insufficient, the proceeding must fail."
Conclusion
This proceeding is dismissed without prejudice.
(1) The Petition improperly described Respondent as a tenant when he is a licensee.
(2) Petitioner failed to file the 30 day notice with the court and thus failed at trial to prove proper service of same.
So Ordered: