The question presented in this matter is whether or not a person whose right to reside in what has been her marital residence for four years, and whose right to do so stems not merely from petitioner's permission, but from a true family relationship, can be summarily evicted as a mere licensee without the bringing of an ejectment action in supreme court. The court concludes that this question must be answered in the negative.
The seminal case on whether or not a family member can be evicted as a mere licensee, decided 50 years ago, is Rosenstiel v Rosenstiel (20 AD2d 71 [1963]). In that case, a husband sought to evict his wife from what had been the marital residence, but which was owned in his name alone. In discussing the legislative intent behind RPAPL 713 (7), the Court noted that although the Law Revision Commission report upon which the legislation was based listed numerous categories of persons who could be summarily [*3]evicted in the absence of a landlord-tenant relationship, including a spouse who remained upon the premises after separation or divorce, the legislature at that time adopted only two categories, a licensee who held over after revocation of the license and a lessee of a life tenant who died before the expiration of the lease term. The Court further noted that the{**40 Misc 3d at 630} Supreme Court and the Family Court were specifically empowered to deal with issues surrounding property and the breakup of a family, and went on to hold that a spouse's right to occupy the family residence stems not from her husband's permission, but from the very family relationship itself, and that she therefore could not be evicted as a mere licensee.