Family Member Not "Licensee"

            A recent Nassau County District Court decision highlights the definition of a "licensee" with respect to summary eviction proceedings against family members.  In Kakwani v. Kakwani (2013 NY Slip Op 23200), the petitioner (the owner of a premises) brought a summary eviction proceeding against a family member who was a tenant of the premises pursuant to RPAPL Section 713(7).  The petitioner alleged that the tenant was a "licensee" whose license to reside at the premises (which was the respondent's marital residence) has been revoked, thereby allowing service of a 10 day notice to quit before an eviction proceeding was brought (as opposed to a 30 day notice that's required for other types of summary eviction proceedings).  The tenant's defense was that she is a "family member" who cannot be evicted in a summary proceeding.

Although the statutory law does not indicate whether a "licensee" includes family members, the Court noted that case law does.  According to the Court, case law holds that a family member is not a "licensee" for purposes of a RPAPL Section 713(7) action, and that an ejectment action commenced in the Supreme Court (as opposed to a summary eviction proceeding) is the proper avenue in such situations involving family members (it should be noted that an ejectment action is generally more time consuming than a summary eviction proceeding).

The Court stated the following: "These cases seemingly show that occupancy due to familial relationship does not constitute a licensee agreement as intended by RPAPL 713 (7).  There are various forms of family relationships ranging from spousal, parent and child, and even nonmarried couples. They are unique and thus should not be terminated through summary proceedings, which tend to be speedy.  Instead, more appropriate avenues must be taken such as ejectment actions or proceedings in Family Court....All this court holds is that a family member may not be summarily evicted from the family home with a 10-day notice to quit.  A more deliberate process is required and is readily available."

Salvatore R. Marino, Esq.

Stepfather Not “Immediate Family” for “Zone-of-Danger” Claim

            A recent Appellate Division, Second Department decision highlights the law for bringing an emotional distress claim caused by witnessing a family member's serious injury or death as a result of another person's negligent act.  In Thompson v. Dhaiti, et al (2^nd Dept 2013) (Index No. 24951/09), the plaintiff, the decedent’s stepdaughter, was standing in front of a barbershop when cars driven by defendants Dhaiti and Pacific collided.  One of the vehicles jumped onto the sidewalk, struck the decedent, who had been walking on the sidewalk, and crashed through the front window of the barbershop, pushing the decedent through the window and pinning him against a chair in the shop.  The decedent later died of his injuries.  The plaintiff then brought a lawsuit against the defendants, seeking damages for emotional distress caused by having witnessed the decedent’s death while being in the “zone-of-danger.”

            The Appellate Division ultimately held that the plaintiff was not entitled to recover damages under this claim, and as a result her lawsuit was dismissed (by way of defendants’ motion for summary judgment) as the decedent was not the plaintiff’s “immediate family.”  The Court notes that although the decedent was plaintiff’s stepfather, and the plaintiff lived with him since she was four years old and he had financially supported her for the majority of her life and acted as her father, he was not her biological father and therefore not considered to be her "immediate family" member (citing Bovsun v. Sanperi, 61 NY2d 219 and Trombetta v. Conkling, 82 NY2d 549).  The Court stated the following: “There is no blood relationship, even if the plaintiff and the decedent had the same quality of relationship that a parent has with his or her biological child.  In light of the strong public policy limiting liability under the zone-of-danger rule and favoring an objectively defined class of individuals who fall within ‘immediate family’ for purposes such as liability, we concluded that stepchildren are not immediate family members.  Thus, the Supreme Court properly granted the motion of the moving defendants for summary judgment dismissing the complaint insofar as asserted by [plaintiff] against each of them.” 

Salvatore R. Marino, Esq.