In a recent decision that promises to make Thanksgiving dinners a lot more awkward for many New York families, the New York City Civil Court, Queens County (Guthrie, J.) held that a landlord may bring a summary holdover proceeding against a tenant, even when that tenant happens to also be the landlord’s sibling.

In Persain v. Persane, 77 Misc. 3d 992 (Civ. Ct., Queens Cnty. 2022), the court had occasion to consider the often thorny issue of landlord-tenant law known as the “familial exception” to the maintenance of a summary proceeding against a family member. Before discussing the Persain decision, some background on the familial exception will help set the stage.

History of the Familial Exception

The familial exception traces its origins back to a 1963 decision of the First Department in Rosenstiel v. Rosenstiel, 20 A.D.2d 71 (1st Dep’t 1963). In Rosenstiel, the petitioner brought a summary holdover proceeding under Section 713(7) of the Real Property Actions and Proceedings Law (RPAPL) to remove his wife from the premises, their former marital home. RPAPL Section 713(7) provides the statutory framework to evict a person who is occupying the subject premises under a license after that license has been revoked.

The court in Rosenstiel reasoned that the petitioner’s wife was not a licensee for the purposes of RPAPL Section 713(7) in that her “possession of the premises exist[ed] because of special rights incidental to the marriage contract and relationship,” not as an invitee under a revocable license. Accordingly, the court held that the husband could not maintain a holdover proceeding against his wife.

The court’s decision rested on the notion that “the husband has the obligation … to support and maintain his wife” and that a “part of this duty is to provide a suitable home for her.” In its 1974 decision in Halaby v. Halaby, 44 A.D.2d 495 (1st Dep’t 1974), the First Department recognized that the husband’s support obligation was a critical factor in its decision in Rosenstiel. In Halaby, the court held that a husband could maintain a summary proceeding against his wife because, unlike in Rosenstiel, the husband’s support obligations were already satisfied by a Family Court order awarding the wife monthly cash payments intended to cover housing costs.

Despite the narrow holding and antiquated reasoning of Rosenstiel and the First Department’s early attempt to limit its application, lower courts adhered to the holding and expanded it over the years to encompass familial relationships more broadly.

Most decisions interpreting the familial exception post-Rosenstiel are by the trial courts and, predictably, they are not uniform. For example, the exception was extended to nonmarital partners in Minors v. Tyler, 137 Misc. 2d 505 (Civ. Ct., Bronx Cnty. 1987), and to stepchildren in Nagle v. Di Paola, 134 Misc. 2d 753 (Dist. Ct., Nassau Cnty. 1987).

InDeJesus v. Rodriguez, 196 Misc. 2d 881 (Civ. Ct., Richmond Cnty. 2003), the court held that the petitioner could not bring a summary proceeding against his former girlfriend and their two minor children based on the parties’ “emotional and financial commitment and interdependence,” reasoning that the nuclear family is no longer the sole model for determining a familial relationship. Likewise, in Williams v. Williams, 13 Misc. 3d 395 (Civ. Ct., N.Y. Cnty. 2006), the court held that a grandmother could not maintain a summary proceeding against her adult grandchildren who had resided in her apartment since the inception of the tenancy, when they were eleven years old.

The Familial Exception Revisited

After decades of decisions that greatly expanded the familial exception, recent decisions indicate that courts are now beginning to reel it back in.

In Heckman v. Heckman, 55 Misc. 3d 86 (App. Term, 2d Dep’t 2017), the daughter of the former owner of the premises brought a summary licensee proceeding to evict her stepsister, the daughter-in-law of the prior owner. The Appellate Term, Second Department, in reversing the trial court, granted a final judgment of possession to the petitioner.

The court observed that lower court decisions employing the familial exception relied on a misreading of the holding in Rosenstiel. Id. The court explained the holding in Rosenstiel was not based on a license or special relationship between husband and wife, but on the existence of a support obligation, which extended to a right of possession. Id. The court further explained that lower courts have continued to improperly apply the holding in Rosenstiel, resulting in an expanded exception untethered to support or other obligations and based solely on a broadly defined familial relationship.

Ultimately, the court held that “where, as here, it is clear that an occupant does fit into one of the RPAPL 711 or 713 categories, there is no ‘familial exception’ bar to the maintenance of a summary proceeding.” The court observed that its decision is in line with decisions of the Second, Eleventh, and Thirteenth Judicial Districts, (citing Pugliese v. Pugliese, 51 Misc. 3d 140(A) (App. Term, 2d Dep’t 2016);Odekhiran v. Pearce, 54 Misc. 3d 126(A) (App. Term, 2d Dep’t 2016)). In a January 2021 decision in Aloni v. Oliver, 70 Misc. 3d 137 (App. Term, 1st Dep’t 2021), the Appellate Term, First Department, relying on Heckman, held that the sole proprietary lessee of a co-op apartment could bring a licensee proceeding against a former domestic partner with whom the licensor had been in a “family-like ‘romantic relationship,’” reasoning that “Rosenstiel does not otherwise compel or suggest that a licensee proceeding cannot be maintained against a family member other than a spouse.”

‘Morris’ Decision Creates Uncertainty Regarding Extent of Familial Exception

Not all courts have adopted the downsizing of the familial exception. In Morris v. Morris, 63 Misc. 3d 453 (Civ. Ct., Bronx Cnty. 2018), a sister brought a licensee action to evict her brother, a 76-year-old disabled veteran, from their family home after their father passed away. Id. The brother had lived in the property for sixty years and claimed to have been paying bills for the property (which the court noted would arguably make him a tenant).

In declining to follow Heckman, the court stated:

The Heckman decision attempts to draw a line in the sand … which would completely disregard the allegations and issues in dispute here, and simply reduce the proceedings to nothing more than rote adherence to an artificial, and misguided, extremely restrictive interpretation of the law, rather than the more compassionate, and encompassing, interpretation that the court in Rosenstiel envisioned, and that other courts in this state have embraced in the 55 years since Rosenstiel.

Under the articulation of the familial exception set forth in Morris, the court focuses less on the nature of the familial relationship or the existence of support obligations and more on the status of the premises as a family home. By rejecting Heckman and adhering to the longstanding, broadened interpretation of the familial exception, the Morris decision re-introduced an element of uncertainty regarding the applicability of the exception.

‘Persain’ Adopts Narrower Interpretation

In its December 2022 decision, the court in Persain adhered to the narrowing of the exception when it held that there is no per se bar to a holdover proceeding against a family member absent a support obligation.

In Persain, a sister commenced a summary proceeding against her brother to evict him from the property, where he resides with his mother. The brother moved to dismiss for lack of subject matter jurisdiction, arguing that the sister could not maintain a summary proceeding against him as a licensee because he is a family member and because he contributed to the purchase and ongoing mortgage payments for the home.

Citing Heckman, the court explained that “the narrow exception to the maintenance of summary proceedings against family members relates to those relationships where there is a ‘support’ obligation, whether to a spouse or to a minor child.” The court further observed that “[t]here is no allegation in the motion at bar that any such obligation of ongoing support exists between petitioner and respondent.”

The court held that, although there were issues of fact to be resolved at trial concerning the brother’s alleged monetary contributions, the court had subject matter jurisdiction because the case did not fall within the familial exception.

Conclusion

Although the issue remains unsettled, the decision in Persain may signal a return to a narrower interpretation of the familial exception. The authors recognize that this may not bode well for Thanksgiving dinner this year in some households. Nevertheless, this is an issue worth watching for practitioners as the exception continues to evolve.

Reprinted with permission from the April 25, 2023 issue of New York Law Journal© 2023 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.