finding the statute that authorizes special proceedings to remove licensee from property is not applicable to authorize summary proceeding to evict a wife
How later courts described this case
- finding the statute that authorizes special proceedings to remove licensee from property is not applicable to authorize summary proceeding to evict a wife
Written by the judges who cited it.
Distinguished
Distinguished by Aloni v. Oliver, 70 Misc. 3d 137(A) (2021)
Thus, Rosenstiel is distinguishable.
Distinguished by Wildenstein v. Nineteen East Sixty-Fourth Street Corp., 177 Misc. 2d 517 (1998)
It is the Corporation’s position that while an owner husband may not utilize summary proceedings to evict a wife from a marital residence, in this case Alec Wildenstein does not own or control the Corporation, and thus Rosenstiel is inapplicable.
The opinion
Steuer, J. (concurring).
I concur in the result, namely, that by virtue of the proceedings the defendant wife is out of the apartment and she cannot get back in. Whether in this particular case this result is reached by affirming or reversing the order on the motion for summary judgment is of small moment.
However, I cannot go all the way with the reasons underlying the decision and expressed in the scholarly opinion of my brother Eager. A spouse does not have a right to occupy realty owned by the other spouse by virtue of the marital status, any more than a spouse has a right to the use of any other property owned by the other spouse. G-ranted that, absent other factors, there is a privilege for such use implied in that status. Of course, the courts are empowered to require the husband to support the wife and this includes providing a home for her. In most instances the practical and expedient method of requiring the husband to provide shelter is to allow the wife to occupy the premises previously used as the marital home. But this is not to say that the court can compel the husband to allow the wife to use his property in that connection where other adequate provision is made for her.
Nor can I agree with the deductions drawn from the failure of the Legislature to enact the more specific provisions recommended by Professor Semerad. It is just as reasonable, in my opinion, to conclude that the Legislature acted upon the assumption that the situation created by the holdover of a spouse was already covered and that more specific provisions would only hamper the established procedures on provisions for support. The decision in Tausik v. Tausik (11 A D 2d 144) while distinguishable in the particular aspect pointed out in the majority opinion, must of necessity rest on recognition of these basic principles.
Botein, P. J., Breitel and Babin, JJ., concur with Eager, J.; Steuer, J., concurs in result in opinion.
Order, entered on July 11, 1963, unanimously reversed, on the law, with $20 costs and disbursements to appellant and respondent’s motion for summary judgment denied, with $10 costs.