The following named papers numbered 1 to 3 submitted on this Motion to Dismiss and Cross Motion for Summary Judgment on October 23, 2018papers numberedNotice of Motion and Supporting Documents 1Notice of Cross Motion and in Opposition to Motion 2Reply Papers to Motion 3 Before this court is respondent’s motion seeking dismissal of the Petition for lack of jurisdiction. Also before the court is petitioner’s cross motion for summary judgment, pursuant to CPLR 3212.Petitioner is the step-daughter of respondent, who married petitioner’s father on May 19, 2017. Petitioner’s father was the former co-owner of the subject premises, along with his petitioner-daughter. Before the referenced marriage, petitioner’s father transferred his ownership interest in the premises to his sister. Since said marriage the only parties to reside in the premises are respondent and her 14 year old son, respondent’s husband and the parents of respondent’s husband.It is uncontroverted that the parties in this action signed a month-to-month lease for the premises on May 24, 2017, and that the purpose of the lease was to satisfy the residency requirements of the local school district as it concerned the enrollment of respondent’s son. Petitioner claims that the lease contained all essential terms. However, respondent offers a sworn assertion that the amount of rent was omitted from the lease, which she provided to the school district.Respondent now seeks dismissal of this action based upon the existence of a familial exception to the commencement of summary proceedings. Petitioner seeks summary judgment, claiming that said familial exception does not apply, and that the terms of the month-to-month tenancy control so as to provide jurisdiction of the proceeding to this court.Although respondent does not set forth the statutory basis for her motion, her motion claims that this court lacks subject matter jurisdiction for the reasons set forth above. Pursuant to CPLR 3211(a)(2), “[a] party may move for judgment dismissing one or more causes of action asserted against him on the ground that the court has not jurisdiction of the subject matter of the cause of action.” Also, as provided by CPLR 3211 (e), such grounds for dismissal may be raised at any time.Generally, and with limited exceptions, a family member may not evict another family member in a summary proceeding where the occupancy arises out of a familial relationship (Rosenstiel v. Rosenstiel, 20 AD2d 71 [1st Dept 1963]; Kakwani v. Kakwani, 40 Misc 3d 627 [Nassau Dist Ct 2013]; Lally v. Fasano, 23 Misc 3d 938 [Nassau Dist Ct 2009]; Hon. Stephen L. Ukeiley, The Bench Guide to Landlord & Tenant Disputes in New York 47 [2d ed 2013]). “However, a summary proceeding is permitted to evict a family member whose occupancy is not the result of a ‘familial relationship’” (Hon. Stephen L. Ukeiley, The Bench Guide to Landlord & Tenant Disputes in New York 47 [emphasis in original]).As stated in Lally v. Fasasno, 23 Misc3d at 941:“In interpreting the definition of a ‘family,’ courts have traditionally considered whether the parties lived together ‘in a family unit’ with ‘some indicia of permanence or continuity’ (Braschi v. Stahl Assoc. Co., 74 N.Y.2d 201, 211, 543 N.E.2d 49, 54 [1989] ). Whether the parties resided together has often been the ‘critical factor’ in determining whether they are to be considered a ‘family’ for legal purposes (see Sirota, 164 Misc.2d at 967, 626 N.Y.S.2d 672).”It is uncontested that petitioner and respondent do not live in the subject premises together. Accordingly, there is no familial relationship that would preclude this court from exercising jurisdiction over this action. Accordingly, respondent’s motion is denied.Turning to petitioner’s cross motion, summary judgment is drastic relief, as it denies one (1) party the opportunity to go to trial. Thus, summary judgment should only be granted where there are no triable issues of fact (see Andre v. Pomeroy, 35 NY2d 361 [1974]). The focus for the court is on issue finding, not issue determining (see Hantz v. Fishman, 155 AD2d 415 [2d Dept 1989]). The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering evidence in admissible form to demonstrate the absence of any material issues of fact. Failure to make such a prima facie showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see Alvarez v. Prospect Hosp., 68 NY2d 320 [1986]; Winegrad v. N.Y. Univ. Med. Ctr., 64 NY2d 851 [1985]). Once the movant has demonstrated a prima facie showing of entitlement to judgment, the burden shifts to the party opposing the motion, to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (see Zuckerman v. New York, 49 NY2d 557 [1980]).The record before this court, does not support summary judgment as sought by petitioner. Although the parties agree that a lease was signed between them, respondent has offered a sworn statement that an essential term of such lease, an amount for rent, was missing from the document she signed. She also claims that the instrument was not a genuine lease agreement, but was prepared and executed merely to satisfy the requirements of the local school district so that her son could be enrolled therein. This is largely confirmed by the affidavit of her husband, petitioner’s father.Accordingly, a question of fact remains unresolved, that being the existence of a lease agreement, which issue precludes granting summary judgment, as this action is brought by virtue of such lease agreement. Accordingly, petitioner’s cross motion, pursuant to CPLR, 3212, is denied.At the time that a motion schedule was set for this matter, a date which has since passed, had been set for trial. On the record presented here, the parties and their respective attorneys are directed to personally appear before this court on January 10, 2019, at 9:30 am, so that a new trial date may be set.So Ordered.Dated: December 18, 2018
