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Wayne Rodriguez v. Diane Greco

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS


April 13, 2011

WAYNE RODRIGUEZ,
RESPONDENT,
v.
DIANE GRECO,
APPELLANT,
AND
THOMAS MARCIANO,
UNDERTENANT.

Appeal from an order of the District Court of Nassau County, First District (Scott Fairgrieve, J.; op 25 Misc 3d 1012), entered September 30, 2009. The order denied occupant Diane Greco's motion to dismiss the petition and awarded a final judgment of possession to petitioner in a summary proceeding brought pursuant to RPAPL 713 (7).

Rodriguez v Greco

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 13, 2011

PRESENT:NICOLAI, P.J., TANENBAUM and LaCAVA, JJ

ORDERED that the order is reversed, without costs, and occupant Diane Greco's motion to dismiss the petition is granted.

In this licensee summary proceeding (RPAPL 713 [7]), the petition alleges that Diane Greco (occupant), petitioner's former wife, entered into possession of the marital home pursuant to an oral license made in October 2007 and that she was served with a 10-day notice to quit. The petition provides no other facts relating to the alleged oral license. Occupant asserted in her answer that she had not entered into possession pursuant to an oral license, but rather that she had entered into exclusive use and occupancy of the premises. In addition, she alleged that she was entitled to a 30-day notice to quit.

Occupant moved to dismiss the petition on the grounds, among others, that the District Court lacked subject matter jurisdiction over the proceeding and that she was a tenant entitled to a 30-day notice to quit, and not a licensee. She averred that she had been given the right to exclusively occupy the entire premises while her divorce proceeding against petitioner was pending. She further showed that the judgment of divorce, entered September 10, 2008, regarded the marital premises as petitioner's separate property and provided that occupant must remove from the premises no later than three months following the entry of the final judgment of divorce. Petitioner did not submit any opposition to occupant's motion.

The District Court denied occupant's motion to dismiss the petition and granted petitioner a final judgment of possession, upon finding that the court had subject matter jurisdiction over the proceeding, that occupant was a licensee, and that this proceeding, predicated upon a 10-day notice to quit, was sufficient.

Contrary to occupant's contention, the District Court is not deprived of jurisdiction because a judgment of divorce was entered in the Supreme Court (see Halaby v Halaby, 44 AD2d 495 [1974]). Moreover, pursuant to UDCA 204, the District Court has jurisdiction over summary proceedings for the recovery of real property.

However, the District Court should have granted occupant's motion to dismiss the petition based on her showing that she was not a mere licensee. In the papers submitted in support of the motion to dismiss, occupant averred that she had been given the right to exclusively occupy the premises. Petitioner did not refute this allegation, and the verified petition, which could be treated as an affidavit (CPLR 105 [u]), contained only conclusory allegations and did not set forth facts sufficient to show that occupant had entered the premises as a licensee. A tenancy at will, and not a mere license, was created when occupant was given the right to exclusively occupy the premises (see Williams v Hylan, 223 App Div 48 [1928], affd sub nom Williams v City of New York, 248 NY 616 [1928]; see also Larned v Hudson, 60 NY 102 [1875]; Stauber v Antelo, 163 AD2d 246, 248 [1990]; cf. City of New York v Utsey, 185 Misc 2d 715 [App Term, 2d & 11th Jud Dists 2000]).

On these facts, occupant was entitled to a 30-day notice (see Real Property Law § 228; Vitarelle v Vitarelle, 21 Misc 3d 130[A], 2008 NY Slip Op 52045[U] [App Term, 9th & 10th Jud Dists 2008]), and the 10-day notice to quit is an inadequate predicate to this proceeding (see UHAB HDFC v Diaz, 10 Misc 3d 130[A], 2005 NY Slip Op 51957[U] [App Term, 1st Dept 2005]).

Nicolai, P.J., Tanenbaum and LaCava, JJ., concur.

Decision Date: April 13, 2011

20110413

© 1992-2011 VersusLaw Inc.



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