Recitation, as required by CPLR §2219(a), of the papers considered in the review of respondent’s motion seeking an order dismissing the instant proceeding based on a lack of subject matter jurisdiction and petitioner’s cross-motion for a judgment of possession in favor of petitioner and re-issuance and execution of the warrant of eviction.Papers NumberedNotice of Motion and Affidavits Annexed 1Cross-motion and Affidavits Annexed 2Answering Affidavits 3Replying Affidavits 4ExhibitsOtherMemoranda of LawDECISION/ORDER Upon the foregoing cited papers, the Decision and Order on this Motion is as follows: Petitioner commenced the instant licensee holdover proceeding in December 2016, after service of a 10 Day Notice to Quit, seeking to evict respondent, her brother, from the studio apartment located in the garage, of a two family house located at 1771 Seward Avenue, Bronx, New York, 10473. Petitioner alleges that she has revoked respondent’s license to occupy the apartment. Respondent has continuously lived in the house since his teenage years, except for time spent in the military service of the United States. Respondent moves for dismissal of the instant proceeding pursuant to CPLR §3211 (a)(2) for lack of subject matter jurisdiction. Respondent alleges that petitioner obtained the deed to the subject premises by fraud. Alternatively, respondent seeks an order transferring this proceeding to Surrogates Court, where there is a pending order to show cause obtained by respondent seeking an order directing the transfer to the subject premises to him based upon petitioner’s fraud in obtaining the deed from their father. Petitioner cross-moves for a judgment and for reissuance and execution of the warrant of eviction which had previously been granted on default.BACKGROUNDRespondent, Ronald Morris, is 76 years old and a disabled Vietnam War veteran. Mr. Morris has resided at his family’s home for over 60 years. As noted above, petitioner, Dorothy Morris, is respondent’s sister. She states that she had the subject studio apartment built in the garage for Mr. Morris in or about 2016. Mr. Morris indicated that he pays $1000.00 monthly for fuel and $600.00 for the entire house. The relationship between the two parties has been extremely contentious over the years. Based on Mr. Morris’ undisputed allegations., he was injured while serving in the Vietnam War when a grenade blew up and caused an injury to the top of his head. The injury necessitated the surgical insertion of a cranial plate which precipitated mental illness. Mr. Morris alleges that on numerous occasions Ms. Morris would call the police and complain that Mr. Morris had threatened to harm her. In June 2011, Ms. Morris petitioned to have Mr. Morris committed under the provisions of the New York State Mental Hygiene Law (MHL). However, the Court found that he did not have a mental illness which would result in harm to himself or others as defined by the MHL, and the petition was dismissed. In October and December 2016, Mr. Morris filed two petitions in Family Court to obtain an order of protection, alleging that Ms. Morris was stealing his personal property while he was away from home, and threatening to have him “bumped off” and “steal his house.” The proceedings were consolidated and dismissed for lack of jurisdiction. Mr. Morris said that the stress of this situation has caused him to have two double coronary by-pass surgeries within the past two years.Mr. Morris also refers to Ms. Morris as his “adoptive” sister and states that he was unaware that she was the deed owner of the premises until May 27, 2016, when he attempted to register his Letters of Administration with the City of New York. Ms. Morris states that she was not adopted and that she and Mr. Morris are biological siblings. Mr. Morris further notes that Samuel Morris, their father had a severe stroke in 1992, which rendered him bedridden and paralyzed and that he could not have signed the deed transferring the property to Ms. Morris. Samuel Morris died in 2011. Respondent alleges that any such transfer would be fraudulent.DISCUSSIONRespondent’s argument, that the court lacks subject matter jurisdiction, actually rests upon his relationship with Dorothy Morris. Whether or not they are adoptive siblings or biological siblings is of no consequence for purposes of deciding this motion. Courts have, in fact, held that certain types of family members cannot be characterized as licensees subject to eviction pursuant to RPAPL §713(7). In a marital relationship, one spouse cannot be considered a licensee of the other spouse for the purpose of commencing such a proceeding. Rosenstiel v. Roenstiel, 20 A.D.2d 71, 73 (1st Dept. 1963). Couples who live together as domestic partners without marriage have also been precluded from the use of summary licensee proceedings. Minor v. Tyler, 137 Misc.2d 507 (Civ. Bronx Co. 1987). Where a petitioner sought to maintain a licensee proceeding against an ex-girlfriend and their two minor children, the court held that although respondent was not his wife, she was more than a licensee and petitioner had an obligation pursuant to Family Court Act §§413 and 513 to support his children financially as well as by providing shelter. DeJesus v. Rodriguez, 196 Misc.2d 881, 885 (Civ. Ct. Richmond Co. 2003). A grandmother may not use a summary proceeding to evict her adult grandsons from a New York City Housing Authority apartment where they were listed in family composition documents. Williams v. Williams, 13 Misc.3d 395 (Civ. Ct. NY. Co. 2006)Sirota v. Sirota, 164 Misc2d 966, 968, (Civ. Ct. Kings Co. 1995), Affd, 168 Misc2d 123 (App. Term 2d & 11th Jud. Dists 1996) is analogous to the case at bar. In that case a father was attempting to evict his two adult children who resided in the family home for nearly 30 years and had cared for their mother until her death. Because of marital discord, the father had left the house prior to the death of his wife. The court held that because of the familial relationship and the substantial temporal ties to the house, the father could not oust his children by means of a summary proceeding. The Civil Court then transferred the proceeding to Supreme Court, a court of unlimited, general jurisdiction which could decide all the issues that were raised by the parties through motion practice.This court views the situation in the instant proceeding as analogous to the above-cited cases which involved spouses, ex-partners, children and grandchildren with lifelong or substantial temporal ties to a marital or familial residence. Here, respondent was raised in this house and a spent the majority of his life in this house, with the exception of his military service. This court holds that, as a matter of law, respondent herein is not a licensee and that his familial relationship with petitioner and nearly lifelong ties to the subject premises remove this proceeding from the court’s subject matter jurisdiction.Accordingly, the court grants respondent’s motion and dismisses the petition herein and vacates the judgment and warrant. The court notes that both-petitioner and respondent are seeking remedies which are outside of the subject matter jurisdiction of this court and both parties are free to pursue these remedies in other more appropriate forums. The Court further notes that there is, already, a pending action in Surrogate’s Court, which is a Court of appropriate jurisdiction for this inter-family matter. Petitioner’s cross-motion is denied.The Court shall mail copies of its decision/order to counsel. This constitutes the decision/order of this court.Dated: August 8, 2018Bronx, NY
