A wife’s right to reside in what has been her marital residence for four years, and whose right to do so stemmed not merely from the home-owner’s  permission, but from a true family relationship, cannot be summarily evicted as a mere licensee.  Such was the holding of Nassau County District Court Judge Eric Bjorneby in his June 20, 2013 decision in Kakwani v. Kakwani.

Ms. Anjili Kakwani (the “petitioner”), her brother (Amit Kakwani [the “husband”]) and their parents moved into a one family residence in Carle Place in 2004. The petitioner’s mother, as trustee of a family trust, conveyed the home to the petitioner on December 8, 2006.

In March, 2008 Amit Kakwani traveled to India where, for the first time, he met his arranged bride-to-be, the respondent Nisha Kakwani (the “wife”). In September, 2008, the petitioner and Amit traveled to India where the petitioner met her future sister-in-law for the first time. In November, 2008 the respondent moved by herself to the United States and into the Kakwani family home. On December 22, 2008 respondent and Amit Kakwani were married.

Amit and Nisha resided in the master bedroom of the family home, as husband and wife, until sometime in 2012 or early 2013 when Amit moved out of the master bedroom and into another room in the house.
In September, 2013, the petitioner had respondent served with a 10-Day Notice to Quit.

The petitioner brought this summary proceeding pursuant to RPAPL §713(7) to evict the respondent (the petitioner’s sister-in-law) on the ground that respondent was a licensee whose license to reside at the premises had been revoked. (The husband, Amit, was not named as a respondent in this proceeding, nor had rent ever been sought from or paid by Amit [or by his wife, for that matter].)

The wife sought dismissal of the proceeding, claiming that she is a family member not subject to eviction in a summary proceeding brought pursuant to RPAPL §713(7).

In this decision, Judge Bjorneby dismissed the proceeding. The Court first noted that RPAPL §713 provides that a special proceeding may be maintained after a ten-day notice to quit has been served where the respondent is a licensee of the person entitled to possession of the property at the time of the license, and (a) his license has expired, or (b) his license has been revoked by the licensor. The statute itself contains no definition of a licensee.

Judge Bjorneby noted that as generally understood in the law of real property, a licensee is one who enters upon or occupies lands by permission, express or implied, of the owner, or under a personal, revocable, nonassignable privilege from the owner, without possessing any interest in the property, and who becomes a trespasser thereon upon revocation of the permission or privilege.

For the Court, the seminal case on whether or not a family member can be evicted as a mere licensee was decided fifty years ago. In Rosentiel v. Rosentiel, 20 A.D.2d 71, 245 N.Y.S.2d 395 (1st Dept. 1963), a husband sought to evict his wife from what had been the marital residence, but which was owned in his name alone. That court noted that it was the Supreme and Family Courts that were specifically empowered to deal with issues surrounding property and the break-up of a family. A spouse’s right to occupy the family residence stemmed not from her husband’s permission, but from the very family relationship itself. Therefore, the spouse could not be evicted as a mere licensee.

Judge Bjorneby presented a scholarly discussion of the relevant caselaw. Some cases supported what came to be known as the “family exception” to those who may be deemed a licensee for summary eviction purposes. Among the cases reviewed by Judge Bjorneby was the 1989 decision of the Court of Appeals in Braschi v. Stahl Assoc. Co., 74 N.Y.2d 201, 544 N.Y.S.2d 784. That decision construed the meaning of the statutory term “family” for purposes of determining succession rights to a rent-controlled apartment:

The intended protection against sudden eviction should not rest on fictitious legal distinctions or genetic history, but instead should find its foundation in the reality of family life. In the context of eviction, a more realistic, and certainly equally valid, view of a family includes two adult lifetime partners whose relationship is long term and characterized by an emotional and financial commitment and interdependence. This view comports both with our society’s traditional concept of “family” and with the expectations of individuals who live in such nuclear units.

Another line of cases (rejected by Judge Bjorneby) attempted to impose a bright-line test. In 2009, Suffolk County District Court Judge C. Stephen Hackeling in Drost v. Hookey, 25 Misc.3d 210, 881 N.Y.S.2d 839, held that the prior case-by-case analysis in licensee proceedings as to whether or not a “family relationship” existed should be abandoned for a more bright line approach: all persons residing together in some sort of family relationship, and without the benefit of a landlord tenant relationship, should be classified as licensees of the titled owner (and subject to summary eviction) unless a specific statutory “opt-out” could be identified, such as with reference to a right of support from the petitioner.

That same approach was adopted by the court in Piotrowski v Little, 30 Misc.3d 609, 911 N.Y.S.2d 583 (Middletown City Ct. 2010), a same-sex partner case where this “objective” analysis regarding the existence of a statutory opt-out from licensee status was preferred.

Judge Bjorneby disagreed, preferring the analysis of Judge Stephen L. Ukeiley, author of The Bench Guide To Landlord & Tenant Disputes in New York, where at page 39 he wrote:

With limited exceptions, a family member may not evict another family member in a summary proceeding. This is the case because where the occupancy of the subject premises arises out of the “familial relationship,” such as an adult child who has lived in the family home since birth, a summary proceeding may not be maintained.

Judge Bjorneby recognized that while bright line rules such as the “statutory opt-out” certainly have their allure, the fact patterns which arise in this area of the law simply do not lend themselves to such mechanical analysis.

Every family, traditional or non-traditional, is different, and each case must be carefully analyzed by the court on a case by case basis to determine whether or not the parties were involved in a true family relationship as opposed to mere friends or temporary live-in paramours. If in fact a family relationship exists, a titled family member should not be permitted to break up the family unit and evict another family member in summary fashion with a 10-day notice to quit.

The arbitrariness and potential for extreme unfairness of a bright line rule such as the limited “statutory opt-out” was well illustrated by the facts in the instant case. The young respondent was an unemployed woman, born and raised in India, whose family arranged a marriage for her to the petitioner’s brother. The petitioner’s family brought her to this country just a month before her wedding and provided her with a marital residence, the only home she has known since her arrival in this country and her marriage to the petitioner’s brother over four years ago. They lived together as a true family with all the indicia of a common home, financial support, and emotional interdependence. The respondent’s right to reside in the instant premises arose not merely from the petitioner’s consent, but from her marriage into the family.

Since, technically, the petitioner has no legal obligation to support the respondent, the respondent would not have the theoretical protection of a “statutory opt-out” analysis. However, Judge Bjorneby would not allow the petitioner to accomplish for her brother what he himself could not accomplish himself, namely to evict his wife from the marital residence without provision for shelter or a single dime for support.

The Court noted that a titled owner of a family residence, living with family members where the family relationship has broken down, is not without a remedy. As often noted in the decisions reported by Judge Bjorneby, more deliberate process of a supreme court ejectment action is readily available.

Rappaport, Hertz, Cherson & Rosenthal, P.C., of Forest Hills, represented the petitioner. Nassau/Suffolk Law Services represented the respondent.