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Cuthbert Rambally v. Sheran Albert

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


May 23, 2011

CUTHBERT RAMBALLY,
RESPONDENT,
v.
SHERAN ALBERT,
APPELLANT.

Appeal from a final judgment of the Justice Court of the Village of Tarrytown, Westchester County (Kyle C. McGovern, J.), entered April 21, 2010.

Rambally v Albert

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This opinion is uncorrected and will not be published in the printed Official Reports.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 May 23, 2011

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

The final judgment, after a non-jury trial, awarded possession to petitioner in a summary proceeding brought pursuant to RPAPL 713 (7).

ORDERED that the final judgment is reversed, without costs, and the petition is dismissed.

In this licensee summary proceeding (RPAPL 713 [7]), petitioner seeks to remove his domestic partner (occupant), the mother of his two children, from an apartment that they share in a building operated by the Tarrytown Municipal Housing Authority. Petitioner alleges that he is the tenant on the lease and that occupant is a mere licensee in the apartment.

The record shows that, when the parties entered into occupancy of the apartment in 2007, they executed a lease which, in the family composition section, lists occupant as petitioner's spouse and that, in 2009, petitioner executed a new lease which omitted occupant from the household composition. The lease executed in 2009 required that "all members of the household over age 18 shall execute the lease." As occupant was a member of the household, she was entitled to tenancy rights (see also 24 CFR 966.4 ["A lease shall be entered into between the PHA (Public Housing Authority) and each tenant of a dwelling unit . . ."] [emphasis added]). Thus, occupant is not petitioner's licensee and cannot be evicted as such. Accordingly, the final judgment is reversed and the petition dismissed.

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

Decision Date: May 23, 2011

20110523

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