Respondent moves for an order, pursuant to CPLR 3211(a)(2) and (7) dismissing the petition, petitioner opposed this motion.

The petitioner commenced this holdover proceeding seeking a judgment awarding petitioner possession of 415 East Penn Street, Long Beach, NY 11561 and for a warrant to remove respondent from possession of said premises pursuant to RPAPL §713(10).

The parties are brother and sister. It is undisputed that they inherited the subject premises in 1998 from their parents as equal tenants in common and both presently reside there. The petitioner alleges that by agreement with the respondent he has had exclusive possession of and resided in the entire premises with his wife and children since 1998, paying all the upkeep, carrying charges, and other expenditures without contribution from the respondent. Respondent owns a home in Flower Hill, New York where she has resided for 25 years with her husband. Around June 2008 respondent temporarily moved into the subject premises with petitioner and his family due to her own marital difficulties before returning to her Flower Hill residence at the end of that month. In June of 2009, the petitioner, again due to marital problems, agreed to permit the respondent to live in the subject premises for a few months. The respondent has remained in the premises for over twelve months and has refused to vacate the premises.

Respondent moves for dismissal of the petition based upon the grounds that there is a lack of subject matter jurisdiction and that the pleadings fail to state a cause of action. The petitioner is neither the respondent's landlord nor are there grounds for a summary proceeding under RPAPL §713 given that the respondent is equally entitled to possession with the petitioner, as they are tenants in common of the premises. Furthermore, the respondent claims that even if tenants in common agree on exclusive possession, the exclusive possessor must seek partition pursuant to RPAPL §901 to resolve disputes and are precluded from filing a summary proceeding. [*2]

The petitioner affirms in opposition that as owners they made a contrary agreement, the petitioner further claims that the breach of said agreement is subject to an unlawful detainer petition under RPAPL § 713(10).

The petition to recover possession of real property subject to unlawful detainer pursuant to RPAPL § 713(10) is moot with regards to this proceeding given the undisputed nature of the facts of this case. Both parties agree that petitioner willingly allowed respondent to enter and reside in the premises starting in June 2009. Additionally, it is mutually acknowledged that petitioner and respondent are valid tenants in common of the instant premises. As such, neither is subject to removal by a summary proceeding, as Rasch's New York Landlord and Tenant §38:21 states:

A tenant in common may occupy the property owned in common without incurring liability for its use and occupancy, so long as he does not oust the other cotenant, or interfere with his exercise of a similar privilege. However, as between the cotenants, they may agree that one cotenant shall pay the other for the use and occupancy of the common property or rent therefore. A cotenant who continues in the occupancy of the common property after termination of an agreement to pay use and occupancy therefore, does so as a cotenant, rather than a lessee, and does not subject himself to removal by a summary proceeding as does a tenant who holds over in the occupancy of premises after the termination of his tenancy. Similarly, a cotenant who fails to pay rent to his cotenant in breach of an agreement to do so, does not, by reason of such nonpayment, subject himself to removal from the premises by summary proceedings. While a cotenant may agree with his counterpart to pay rent to him for the use of the common premises, such agreement does not terminate the tenancy in common, nor does it create the relationship of landlord and tenant.

The absence of a landlord tenant relationship prohibits the petitioner from bringing a summary proceeding action against the respondent cotenant. See Henry v. Green (126 Misc 2d 360, 362, 481 N.Y.S.2d 940, 942 [NY City Ct., 1984]) and Valentine v. Healey (16 Bedell 391, 178 NY 391, 70 N.E. 913 [NY 1904]).

The court notes that the respondent raises for the first time in her reply that the petitioner, pro se attorney Stephen Lee, submitted the notice of petition and petition himself. The respondent contends that this procedure is in violation of RPAPL §731, which states:

The special proceeding prescribed by this article shall be commenced by the petition and a notice of petition. A notice of petition may be issued only by an attorney, a judge or the clerk of the court; it may not be issued by a party prosecuting the proceeding in person.

Given that Stephen Lee is both an attorney and the petitioner, this court recognizes the dual roles of Mr. Lee and finds no violation of RPAPL §731 by his issuing the papers herein.

Respondent's motion to dismiss is granted. [*3]

So Ordered:

/s/ Hon. Scott Fairgrieve

DISTRICT COURT JUDGE

Dated:July 19, 2010