In this summary proceeding, a husband asks the court to evict his wife from the marital home where she and their minor child reside. When this action was commenced, the parties were living apart and though a divorce action had not been brought at that point, a Family Court hearing officer had made and was reconsidering prior decisions regarding support and financial responsibilities involving the residence at issue here. Also, while the parties first appeared here pro se, they are now both represented by counsel and a one of the litigants has sued for dissolution of their marriage. This court has raised and still harbors concerns relating to the legality and advisability of continuing this City Court summary proceeding which now parallels the Supreme and Family Court actions.

At the outset, it should be noted that, contrary to the petitioner's position, it is this court's view that his subsequent agreement before the family court hearing officer that he would pay the mortgage as part of his support obligation superceded and vitiated the lease agreement between the parties. Thus, at the time this action was commenced, there was no landlord-tenant relationship between the husband and wife. Therefore, a non-payment proceeding based in that lease may not be properly maintained. Even if this view is incorrect, however, for the reasons which follow, the court declines to evict the petitioner's wife and child from the marital home.

As counsel for the petitioner correctly notes, the Fourth Department held over thirty-five years ago that a spouse is not necessarily precluded from moving to evict his or her partner from the marital home. Halaby v. Halaby, 44 AD2d 495 (4th Dept., 1974). Moreover, our courts have ruled that a separated couple can execute a binding rental agreement which might form the basis of a summary action to recover marital real property. Tausik v. Tausik, 11 AD2d 144 (1st Dep't 1960), order aff'd, 9 NY2d 664 (1961); see also McKinney's General Obligations Law § 3-301. Importantly neither the Halaby nor the Tausik respondents were tenants, rather, each case involved occupation by an individual deemed to be a licensee.

In this matter, however, the petitioner has sued his wife as a tenant, not a licensee. [*2]Regardless of whether this court may liberally construe petitioner's pro se pleadings to allow the petitioner to proceed on the license theory, the petition would have to be denied: a licensee can only be evicted after a ten day notice terminating the license is served on the respondent. McKinney's RPAPL § 713(7). So, even if this had been properly commenced and pled as a licensee action, there is no evidence in the record before the court that the respondent's license to remain in the premises was properly revoked.

Moreover, melding this action into some amorphous tenant/licensee action to recover real property still doesn't give this court jurisdiction. The underlying premise of the Halaby and Tausik cases, that a wife has no interest in property to which she does not have title, isn't a legally valid position in post equitable distribution New York. Their precedential value in eviction cases has been diminished since "title [is] no longer determinative under equitable distribution." New York Matrimonial Law and Practice, Timothy Tippins, § 17:33 (FN 16).

In addition, in the Halaby case, there were no children in the house and neither party argued that the full obligation of the husband to the wife was not satisfied by the family court order. In this case: there is a child of the marriage who is subject to the support order; a summary proceeding was commenced while there was a pending case in family court; and, there is now a pending divorce action in Supreme Court. Thus, unlike the Halaby case, no argument can be made here that, other than who gets to live in the marital residence, all of the other issues between the parties have been resolved.

The court is especially concerned that any mid-school-year ruling by this court could have a devastating effect on the un-represented minor child who lives with the respondent. Compare Nagle v. DiPaola, 134 Misc 2d. 753, 756 (N.Y.Dist.Ct.,1987) ("Petitioner may not obviate the necessity of submitting to the jurisdiction of the proper tribunals to determine the respective rights of his family to occupy the marital home by means of a summary proceeding in this court"). One likely result should this court precipitously grant petitioner's request can be found in the Kikuyu proverb which reminds us that "when the elephants fight..... it's the grass that gets trampled." This court will not risk such a catastrophic consequence for an unrepresented minor in this discrete matter when there are parallel matters in Family and Supreme courts where the interests of all those who would be affected by removing the respondent and her child from the marital home will clearly be addressed by the courts.

Such due process concerns are not the only issues militating against the limited recovery sought in the petition before the court. While this court has restricted jurisdiction, Domestic Relations Law § 236 vests Supreme Court with comprehensive responsibilities when marriages fail which protect the rights of all parties. As noted recently by the Court of Appeals, "when it comes to the equitable distribution of marital property, Domestic Relations Law § 236(B)(5)(d) (13) authorizes the trial court to take into account any other factor which the court shall expressly find to be just and proper.' Consequently, the trial court has substantial flexibility in fashioning an appropriate decree based on what it views to be fair and equitable under the circumstances." Mahoney-Buntzman v. Buntzman,12 NY3d 415, 420 (2009).

In addition, pursuant to Domestic Relations Law § 234(2) a Supreme Court Justice has the responsibility to "make such direction, between the parties, concerning the possession of property, as in the court's discretion justice requires having regard to the circumstances of the case and of the respective parties." In fashioning a decision, the Supreme Court will have the [*3]parties tax returns before it, this court will not. That importance of that dichotomy is striking in this case. Both parties agree that the respondent purchased the marital home on his own and title is in the respondent's name alone. Yet, their tax returns, if filed jointly, might have given the impression that the home was collective property. Again, the Court of Appeals in Mahoney- Buntzman stressed that courts "cannot, as a matter of policy, permit parties to assert positions in legal proceedings that are contrary to declarations made under penalty of perjury on income tax returns." Mahoney-Buntzman v. Buntzman,12 NY3d 415, 422 (2009).

Truncated summary proceedings such as this are a poor substitute for Supreme Court matrimonial actions defined by a carefully crafted statutory scheme replete with opportunities for the exercise of sound judicial discretion. Accordingly, while the court recognizes that it may have jurisdiction to hear this matter, the rights of the unrepresented minor child, breadth of a matrimonial court's purview, relevancy restrictions concerning potentially salient evidentiary matters, the interests of judicial economy and the concept of "one family — one court" lead this court to the conclusion that this action should be dismissed. Thus, after careful consideration and due deliberation, it is hereby

HELD that as a result of actions taken and agreements made in Family Court there was no landlord/tenant or licensor/licensee relationship between the parties at the time of the commencement of this action thus depriving this court of subject matter jurisdiction. Therefore, it is

ORDERED that this petition to recover real property is dismissed with prejudice.

The foregoing constitutes the decision and order of the court.

So Ordered,

Dated: January 4, 2010_____________________________________

Rochester, New YorkThomas Rainbow Morse, JCC

To:

Eric J. Metzler, Esq. (counsel for the petitioner)

Robert Vitale, Esq. (counsel for the respondent)