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Kakwani v. Kakwani

Dist. Ct, Nassau County

June 20, 2013

Anjili Kakwani, Petitioner
v.
Nisha Kakwani, Respondent.

Attorney for Petitioner: Rappaport, Hertz, Cherson & Rosenthal, PC

Attorney for Respondent: Nassau/Suffolk Law Services

Eric Bjorneby, J.

DECISION AFTER TRIAL

Petitioner brings this proceeding pursuant to RPAPL §713(7) to evict the respondent on the ground that she is a licensee whose license to reside at the premises, which is the respondent's marital residence, has been revoked. Respondent's defense is that she is a "family member" who can not be evicted in a summary proceeding.

THE FACTS

The petitioner, her brother Amit Kakwani, and their parents, moved into the one family residence known as 355 Glen Cove Avenue in Carle Place, New York in 2004. Petitioner's mother, as trustee of a family trust, conveyed the home to the petitioner on December 8, 2006. There is no evidence as to what motivated this transfer and the only consideration recited in the deed is "Ten & other good and valuable consideration, lawful money of the United States, paid by the party of the second part..." In March 2008 Amit Kakwani traveled to India where, for the first time, he met his arranged bride-to-be, the respondent Nisha Kakwani. In September 2008 the petitioner and her brother, Amit, traveled to India where petitioner met the respondent for the first time. On or about November 29, 2008 the respondent moved by herself to the United States and into the Kakwani family home. On December 22, 2008 respondent and Amit Kakwani were married. They resided in the master bedroom of the family home, as husband and wife, until sometime in 2012 or early 2013 when Amit Kakwani moved out of the master bedroom and into another room in the house. He has not been named as a respondent in this proceeding and rent has never been sought or paid by him or the respondent.

On September 20, 2012 petitioner had respondent served with a 10-Day Notice to Quit and on January 17, 2013 petitioner had respondent served with the instant Notice of Petition and Petition seeking to evict the respondent alone pursuant to RPAPL §713(7) on the grounds that she is a mere licensee whose license to occupy the premises has been revoked. The respondent alleges she is a family member not subject to eviction in a summary proceeding brought pursuant to RPAPL §713(7). In Family Court on February 15, 2013 petitioner obtained a (refrain) order of protection against the respondent and the respondent obtained a similar order of protection against her husband, Amit Kakwani, the petitioner's brother. The matter was tried before this court on April 2, 2013 and the above facts established. On April 30, 2013 briefs were submitted and the case is now ready for decision.

THE LAW

RPAPL § 713 entitled "Grounds where no landlord-tenant relationship exists" provides in relevant part as follows:

A special proceeding may be maintained under this article after a ten-day notice to quit has been served upon the respondent in the manner prescribed in section 735, upon the following grounds:

7. He is a licensee of the person entitled to possession of the property at the time of the license, and (a) his license has expired, or (b) his license has been revoked by the licensor, or.

The question presented in this matter is whether or not a person whose right to reside in what has been her marital residence for four years, and whose right to do so stems not merely from petitioner's permission, but from a true family relationship, can be summarily evicted as a mere licensee without the bringing of an ejectment action in Supreme Court. The Court concludes that this question must be answered in the negative.

The seminal case on whether or not a family member can be evicted as a mere licensee, decided fifty years ago, is Rosentiel v. Rosentiel, 20 A.D.2d 71. In that case, a husband sought to evict his wife from what had been the marital residence, but which was owned in his name alone. In discussing the legislative intent behind RPAPL ยง 713(7), the Court noted that although the Law Revision Commission report upon which the legislation was based listed numerous categories of persons who could be summarily evicted in the absence of a landlord tenant relationship, including a spouse who remained upon the premises after separation or divorce, the legislature at that time adopted only two categories, a licensee who held over after revocation of the license and a lessee of a life tenant who died before the expiration of the lease term. The Court further noted that the Supreme Court and the Family Court were specifically empowered to deal with issues surrounding property and ...


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