Recitation, as required by CPLR 2219 (a), of the papers considered in the review of this: motion for summary judgment and cross motion to dismiss. Papers/Numbered Notice of Motion and Attached Exhibits 1 Notice of Cross Motion and Attached Exhibits 2 Affirmation in Support and in Opposition 3 This is a proceeding commenced by Petitioner against Respondents to recover possession of the premises located at 2088 Madison Avenue, No.1A, New York, NY 10037. Petitioner is the owner of the premises and maintains that Respondent, the current occupant, never signed a lease nor made any rental payments. Petitioner terminated Respondent’s license to occupy the premises by a Notice to Quit dated February 11, 2019. Respondent failed to vacate upon expiration of the notice and Petitioner commenced the instant holdover proceeding on March 26, 2019. Respondent alleges that he and Petitioner are married pursuant to New York law, and as such, he is not a mere licensee that can be removed from the subject premises through summary proceedings. Respondent asserts that he commenced divorce proceedings in Supreme Court and that any issues pertaining to his continued occupancy in the apartment must be determined in that forum. Petitioner now moves the Court for summary judgment and judgment of possession along with issuance of a warrant of eviction. Petitioner also seeks a money judgment for all outstanding use and occupancy due and owing to date. Petitioner asserts that there are no triable issues of fact as Respondent’s license to occupy the subject premises has been lawfully terminated. Respondent opposes the motion and cross moves for dismissal of Petitioner’s summary proceeding in its entirety on the basis that this Court does not have jurisdiction. The proponent of a motion for summary judgment must tender sufficient evidence to show the absence of any material issue of fact and the right to entitlement to judgment as a matter of law (Alvarez v. Prospect Hospital, 68 NY2d 320 [1986]; Winegrad v. New York Univ. Med. Ctr., 64 NY2d. 851 [1985]). Summary judgment is a drastic remedy that deprives a litigant of his or her day in court, therefore, the party opposing a motion for summary judgment is entitled to all favorable inferences that can be drawn from the evidence submitted and the papers will be scrutinized carefully in a light most favorable to the non-moving party (Assaf. Ropog Cab Corp., 153 AD2d 520 [1st Dept. 1989]). Petitioner maintains that he is entitled to summary judgment as Respondent is a licensee and Petitioner properly terminated Respondent’s license by service of the Notice to Quit. Petitioner further maintains that he is the only shareholder of the subject premises and Respondent never signed a lease nor paid any rent, thus Respondent does not possess any independent tenancy rights entitling him to remain in the subject premises. Similarly, Petitioner disputes Respondent’s claim that the parties are married and maintains that he allowed Respondent to stay at the subject premises, but now wishes to use the apartment for his own personal use. Respondent opposes Petitioner’s motion for summary judgment and an award of possession and issuance of a warrant, as well as a money judgment for use and occupancy. Respondent also seeks dismissal of the underlying action on the basis that he is not merely a licensee and has status akin to that of a spouse with greater rights, thus this Court does not have jurisdiction over his continued occupancy at the subject premises. Respondent claims that beginning in 2006, he and Petitioner began residing together at another apartment before moving into the subject premises together in 2013. Respondent asserts that although he and Petitioner do not have an official marriage certificate, they held a wedding ceremony in Connecticut in 2009 with two friends present and since then have held themselves out as a married couple. In further support of their relationship status, Respondent states that he and Petitioner opened a business together in 2006 and jointly renovated the subject premises in 2014. Respondent maintains that he contributed financially to both the business and the renovation. Lastly, Respondent asserts that he uses the address of the subject premises as his address on all of his forms of identification and has considered the subject premises his home for the last six years. Based on the foregoing, Respondent argues that he is not a licensee, but a family member who cannot be evicted through summary proceedings. Courts are unwavering in their refusal to evict a spouse in a summary licensee holdover proceeding while a divorce or annulment proceeding is ongoing (see Rosenstiel v. Rosenstiel, 20 AD2d 71 [1st Dept. 1963]). Even in situations where the parties were not legally married as evidenced by a valid marriage certificate, courts have found a family member relationship (see Braschi v. Stahl Assoc. Co., 74 NY2d 201 [1989]; Minors v. Taylor, 137 Misc 2d 505 [Civ Ct, Bronx County 1987]; DeJesus v. Rodriguez, 196 Misc 2d 88 [Civ Ct, Kings County 2003]). The Braschi Court held that a gay lifetime partner was a family member eligible to succeed to an apartment after the death of his partner who was the lawful tenant. Petitioner argues that Respondent incorrectly relies on the holding in Braschi, as the apartment at issue there was an apartment subject to rent regulation, whereas here, Petitioner is a shareholder of the subject premises and the apartment is not subject to rent regulation. The Court is not persuaded by that argument. While there are differences in the facts of the cases and the regulatory status of the apartments at issue, the holding in Braschi and the definition of “family” set forth in the decision has been applied in other cases similar to this one in which unmarried couples lived together long term in premises that were not always subject to rent regulation (see DeJesus v. Rodriguez, Id. at 885). Accordingly, the Court finds that on this record Petitioner has not shown entitlement to judgment as a matter of law, as triable issues of fact exist as to the nature of the relationship between the parties and as to Respondent’s alleged status as a licensee. Additionally, given that the parties do not have a legalized marriage, there is question as to whether or not the action filed by Respondent in Supreme Court will move forward. Similarly, the Court cannot dismiss the underlying proceeding in its entirety, as the two pictures, proof of one credit account where Petitioner made Respondent an authorized user and copy of Petitioner’s passport application where Respondent is referred to by Petitioner as his “partner,” attached to Respondent’s motion are insufficient for the Court to find that Respondent and Petitioner lived as a married couple, making Respondent more than a mere licensee. REMAINDER OF PAGE INTENTIONALLY LEFT BLANK Accordingly, both motions are denied. The matter is adjourned to September 9, 2019 at 9:30 a.m., Part U, for all purposes. This constitutes the Decision and Order of the Court. Dated: August 6, 2019 New York, NY
