The Decision/Order after trial in this summary holdover proceeding is as follows.

This licensee holdover proceeding was filed in January 2023. In March 2023, respondent Amrit Thomas filed a pro se answer. Subsequently, counsel appeared for respondent Abdul Thomas and interposed an answer on behalf of Abdul Thomas. The proceeding was transferred for assignment to a trial Part on September 5, 2023.

After the proceeding was assigned to the authoring judge's trial Part, the parties engaged in motion practice that resulted in the amendment of the petition and Abdul Thomas's answer. A trial commenced on February 13, 2024, and continued over multiple days. The trial concluded on April 10, 2024, and the court reserved decision upon its completion.

Petitioner initially offered two (2) deeds, one from 1993 and one recorded on August 31, [*2]2005, into evidence. Although only the 2005 deed was certified, both deeds were admitted without objection. Arcelio Thomas (hereinafter "Arcelio") was then called as petitioner's sole witness.^[FN1] He testified to the following. First, that he is an owner of the subject building and purchased it in 1993 with his stepfather. Later, in 1995, his stepfather gave his interest in the property to his (Arcelio's) mother, Sylvia Earle. As of the time of the trial, his brothers, Amrit Thomas (hereinafter "Amrit") and Abdul Thomas (hereinafter "Abdul") were residing in the subject property, along with Amrit's wife and adult daughter. Amrit took possession in 2017, after he and his wife had a fight and "she kicked him out" of the dwelling where he had been living. Abdul moved in previously, in 2014, with Arcelio's permission.

Arcelio testified that his mother lived at the subject property from 2014 through 2017. He also testified that Amrit's wife, Rosa, came to live in the property in 2021 after Amrit married her in Panama. His testimony was that he did not give permission to Rosa to reside in the property. Arcelio next testified at length about a family meeting dealing with his mother's health. After the meeting, he became his mother's proxy and was given a power of attorney. Over objection, the power of attorney form (dated January 25, 2021) was admitted into evidence. Arcelio testified that he informed his brothers (the respondents) about the power of attorney and that a copy was annexed to the notice to quit for this proceeding. The notice to quit was admitted into evidence over objection after Arcelio testified that he recognized it and that it bore his signature.

Arcelio concluded his direct testimony by stating that respondents were not in the military or dependent on anyone in the military and elaborating upon the basis for this statement. He also testified that he pays the mortgage for the subject property. Before Arcelio's direct testimony concluded, petitioner's attorney requested that the court take judicial notice of the pleadings and affidavits of service for this proceeding.

On cross-examination, Arcelio was asked about the deeds in evidence. He testified that he contributed cash to buy the property but could not remember how much. When asked what room his mother had been living in at the property, he testified that she had a bedroom but that the locks to the bedroom had been changed when she was living there. Arcelio was asked whether his brother, Aldo, was living in the basement of the subject property, he denied that he was and stated that Aldo was living in Brooklyn. He testified that he was last in the basement at the property in 2023.

Next, Arcelio was asked several questions about the power of attorney form in evidence. He confirmed that his mother's initials appeared only next to box "P" under the "Grant of Authority" section, which reads, "EACH of the matters identified by the following letters." He next testified that his mother had been living with him since 2021 and that prior to that, she was living in the subject property. He testified that his mother still had a room at the property, on the second floor, and that it was locked and that he possessed the key. He also testified that Amrit and Abdul had bedrooms on the second floor. He admitted that the doors for both Amrit's and Abdul's rooms had locks on them.

Arcelio was asked about the layout of the basement the last time he was there, in 2023. He stated that there was a refrigerator, a bathroom, and a bed. At the conclusion of cross-[*3]examination, Arcelio was asked about his brother, Aldo Thomas. He testified that he had last seen Aldo at Aldo's residence in Brooklyn, in 2023.

On redirect, Arecelio testified that Aldo had lived at the same address, on Albemarle Road in Brooklyn, for 23 years. He testified again that the last time that he had been to the subject property was in 2023 and stated that he had to call the police to get in at that time. Prior to that, he had been to the property in 2022. At that time, he had seen his mother's room and the basement, which, he testified, appeared to be flooded. At the conclusion of Arcelio's testimony, petitioner rested.

Aldo Thomas was the sole witness for respondents. He testified that he started living at the subject property in 1993. He further testified that he sometimes stays with his girlfriend in Brooklyn. He acknowledged being on his girlfriend's lease, "to help her." He specified that he had been residing in the basement of the subject property for more than 10 years. In response to questions about his mother, Sylvia Earle, he testified that she had lived at the subject property and still had a room there on the second floor, but that she had moved to another house with his brother, Arcelio, two years before. He testified that he had seen Arcelio visit his mother when she was still living at the subject property. However, he stated that Arcelio did not see his room in the basement since it was kept locked and that only his brother, Abdul, had the keys. The court then admitted Aldo's New York State commercial driver's license, dated March 6, 2022, into evidence. The license bore the subject property's address. Aldo then described the layout of the basement and his room there in detail, and the court admitted several photographs of what he testified were depictions of the basement into evidence.

On cross-examination, Aldo was asked about his girlfriend's apartment, on Albemarle Road in Brooklyn. He testified that his girlfriend had been living there for 18-to-20 years. He acknowledged that he "stayed" there and was on the lease. He testified that he stopped going there in April 2023. He nonetheless testified that he "never stopped" living at the subject property. In response to a question about Arcelio, Aldo testified that he had not seen him since 2022. Petitioner introduced and the court admitted photographs of the basement after Aldo testified about them. However, he did not know who took the photographs.

On redirect, Aldo testified that he had never given a key for his basement room to Arcelio. He also testified that he had not given Arcelio permission to enter his room. He stated that his bedroom furniture had been in the subject property for 14 years. Respondents rested upon the conclusion of Aldo's testimony.

Arcelio Thomas was called again as petitioner's rebuttal witness. He was asked about the photographs introduced by petitioner during Aldo's cross-examination. He testified that he took the photos, in June 2023. He testified that when he took them, he had full access to the basement, which was not locked or closed. He stated that Aldo was not present when he took the photos. He also explained that there was a hole in the ceiling, a hole in the floor, and mold by the window in the basement when he was there.

After the rebuttal, the court permitted Amrit Thomas to testify. He testified that Arcelio had not lived in the subject property in more than 20 years. He stated that Arcelio took his mother (Sylvia Earle) for an eye exam in 2021, and that he (Amrit) was still waiting for her to return. He explained that Arcelio never came to visit their mother when she lived at the subject property, nor did he contribute to the upkeep of the property.

On cross-examination by petitioner's attorney, Amrit was asked if Arcelio paid any bills for the subject property. He replied in the negative. He also denied that Arcelio paid the [*4]mortgage for the property and stated that his mother was in foreclosure. He testified that he paid rent and gas, light, and water bills. However, he did not have documents to confirm this. In response to a question from Abdul Thomas's attorney, he testified that Aldo Thomas had lived in the basement of the subject property for 20-to-25 years.

On redirect, Amrit testified that he did not know how Arcelio could ask to take the house when he had not done anything to benefit it. Upon the conclusion of Amrit's testimony, the court heard closing statements and the trial concluded.

In a holdover proceeding brought pursuant to RPAPL § 713(7), it is petitioner's burden at trial to prove that respondents are licensees (see 130-50 228th, LLC v. Moseley, 77 Misc 3d 139[A], 2022 NY Slip Op 51372[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; Wok Kwan Chu v. Lee, 39 Misc 3d 147[A], 2013 NY Slip Op 50859[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). Upon due consideration of the trial testimony and evidence, the court finds that petitioner failed to prove that the named respondents were licensees. Arcelio Thomas testified that he had given both Abdul Thomas (in 2014) and Amrit Thomas (in 2017) permission to reside in the subject property. He also acknowledged during his testimony that both Abdul and Amrit both had bedrooms with their own locks on the second floor of the subject property. There was no testimony that either Abdul or Amrit lacked exclusive possession, at a minimum, of their respective rooms. A hallmark of a license is a lack of exclusive possession (Lee, 2013 NY Slip Op 50859[U], *1; Moseley, 2022 NY Slip Op 51372[U], *2). A license grants "a revocable non-assignable privilege to do one or more acts upon the land of the licensor, without granting possession of any interest therein." (Ark Bryant Park Corp. v. Bryant Park Restoration Corp., 285 NY2d 143, 150 [1st Dept 2001]). Here, there was no testimony or proof that Abdul or Amrit were given a mere revocable privilege to reside in the subject property. The evidence instead demonstrated that they were effectively tenants at will (see 4720 Ave., Inc. v. House, 81 Misc 3d 139[A], 2023 NY Slip Op 51459[U], *2 [App Term, 2d Dept, 9th & 10th Jud Dists 2023] ["When another enters upon land by permission of the owner for an indefinite period, even without the reservation of rent, he is, by implication, a tenant at will."] [internal citations omitted]; City of New York v. Utsey, 185 Misc 2d 715, 718 [App Term, 2d Dept, 2d & 11th Jud Dists 2000]). A tenant at will is entitled to a 30-day notice pursuant to Real Property Law § 228 (see House, 2023 NY Slip Op 51459[U], *2). Thus, petitioner's 10-day notice to quit is also defective, at least as applied to Abdul Thomas and Amrit Thomas. A defective predicate notice cannot be amended (see Chinatown Apts., Inc. v. Chu Cho Lam, 51 NY2d 786, 787 [1980]).

As for Rosa Gisela Mejia De Thomas, Arcelio testified that she entered without his permission after she married Amrit. There was no testimony or evidence demonstrating that she was a licensee. To the extent that Arcelio denied giving her permission to reside in the premises, any claim would arise under RPAPL § 713(3), which relates to squatters, rather than RPAPL § 713(7), which relates to licensees (see Moseley, 2022 NY Slip Op 51372[U], *1-2). Neither the petition nor the notice to quit allege, even in the alternative, that Rosa entered without permission. Thus, petitioner also failed to sustain its burden of proving that Rosa Gisela Mejia De Thomas was a licensee.

Having found that petitioner failed to meet its burden of proving that respondents were licensees, the court does not reach the remaining issues raised by respondents, including the challenge to the validity of the power of attorney in evidence and the failure to name Aldo [*5]Thomas as a respondent. The court will note, however, that even if Arcelio Thomas could not bring the case as an agent for Sylvia Earle, he would not be precluded from proceeding in his individual capacity (cf. Yao Wen Lei v. Yu Hin Chan, 83 Misc 3d 136[A], 2024 NY Slip Op 51204[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2024]).

The clerk shall issue a judgment dismissing the petition after trial (see CPLR § 411). This Decision/Order will be filed to NYSCEF and will be mailed to the unrepresented respondents. The parties are directed to pick up their exhibits within 35 days or they will be sent to the parties or destroyed at the court's discretion in accordance with DRP-185.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.