| Matter of Cudar v O'Shea |
| 2010 NY Slip Op 08941 [78 AD3d 1177] |
| November 30, 2010 |
| Appellate Division, Second Department |
| In the Matter of Frank Cudar, Appellant, v ElizabethO'Shea et al., Respondents. |
—[*1] Philip J. Kaplan, Staten Island, N.Y., for respondents.
In a holdover proceeding, the petitioner appeals, by permission, from an order of theAppellate Term of the Supreme Court for the Second, Eleventh, and Thirteenth Judicial Districtsentered June 25, 2009, which reversed a judgment of the Civil Court of the City of New York,Richmond County (Mundy, J.), dated January 14, 2008, which, after a nonjury trial, was in favorof the petitioner, inter alia, awarding him possession of the subject premises, and thereupondenied the petition and dismissed the proceeding.
Ordered that the order is affirmed, with costs.
The petitioner resided in the subject rent-controlled apartment since 1960, and ElizabethO'Shea (hereinafter Elizabeth) moved into the premises with the petitioner when they married in1969. In 1988, Elizabeth's son, Kevin O'Shea, moved into the premises with the petitioner andElizabeth. Elizabeth and her son (hereinafter together the respondents) continuously occupied thepremises, along with the petitioner, until August 2004. In August 2004, the petitioner wasrequired to vacate the premises by court order after he was arrested and subsequently convictedof harassment in the second degree and criminal possession of a weapon in the fourth degree. Anorder of protection dated February 1, 2006, required the petitioner to stay away from Elizabethuntil January 31, 2009.
Subsequently, the petitioner and Elizabeth were divorced by judgment entered in December2006. The judgment of divorce and an oral stipulation incorporated into the judgment of divorcedid not address the issue of who was entitled to possession of the former marital residence.
In April 2007, the petitioner commenced the instant residential holdover proceeding to evictthe respondents from the subject premises, alleging that he was the prime tenant of the subjectpremises, that Elizabeth was his subtenant, and that Elizabeth's son was an undertenant ofElizabeth. The petition also alleged that Elizabeth entered into possession of the subject premisespursuant to a verbal agreement, and remained in possession after the agreement expired onMarch 31, 2007.
At a nonjury trial, it was established that there was no landlord-tenant relationship betweenthe petitioner and Elizabeth (see Cudar v O'Shea, 24 Misc 3d 129[A], 2009 NY Slip Op51337[U] [2009]). [*2]Nevertheless, the Civil Court of the Cityof New York, Richmond County, awarded the petitioner a final judgment of possession. Onappeal, the Appellate Term for the Second, Eleventh, and Thirteenth Judicial Districts correctlyreversed the judgment, denied the petition, and dismissed the proceeding.
The petitioner was not entitled to relief in this holdover proceeding, since there was nolandlord-tenant relationship.
We decide no other issue. Rivera, J.P., Covello, Santucci and Sgroi, JJ., concur.