
    Caroline P. Young, as Administratrix of the Estate of Sanford Parker, Deceased, Respondent, v Eleanore Carruth, Appellant.
    Supreme Court, Appellate Term, First Department,
    March 18, 1982
    APPEARANCES OF COUNSEL
    
      Kent Karlsson, P. C. (.David Ng of counsel), for appellant. Pruzan & Pruzan (Robert W. Pruzan of counsel), for respondent.
   OPINION OF THE COURT

Per Curiam.

Final judgment entered February 9,1981 affirmed, with $25 costs.

In this holdover proceeding, petitioner is the administratrix of the estate of the deceased tenant (her father) and seeks eviction of the appellant, who entered into possession of the subject apartment premises together with the decedent in 1965 and who lived with him continuously until his death in 1980. Throughout that period, the decedent was legally married to another (who survives him). The original lease and all subsequent renewals were taken solély in the name of the decedent; rent was billed to and paid by him alone until his death. Thereafter the appellant remained in possession and has been paying rent directly to the landlord, not a party to this action. The current lease terminates in September, 1982. Appellant defends the proceeding on the ground that she was the “cotenant” of the decedent entitled to continue in occupancy in her own right notwithstanding her paramour’s death.

On the threshold issue of jurisdiction, RPAPL 721 presents no bar to the maintenance of this summary proceeding by the administratrix. For purposes of estate administration, the leasehold passes to the personal representative (EPTL 13-1.1), and she is authorized to take possession of and manage the same (EPTL 11-1.1, subd [b], par [5], cl [A]). The estate is not acting in a representative capacity; it is the real party in interest here, having replaced the deceased as a party to the lease by operation of law (Schnee v Jonas Equities, 109 Misc 2d 221). Since the asset vests in the administratrix, she has the responsibility to conserve that asset for the benefit of the estate and may invoke all available remedies to that end — including, where appropriate, summary proceedings (Nasti v Verderosa, 73 Misc 2d 479).

As to the merits, we fail to appreciate how appellant’s status progressed beyond that of a mere licensee, the passage of time notwithstanding, or how her rights in the apartment are superior to that of the estate. The estate, as successor in interest to the decedent, is liable for the rent for the remainder of the demised term (see 2 Rasch, New York Landlord and Tenant [2d ed], § 1016). Appellant was never in a landlord-tenant relationship with the owner and could not be held for the balance of the term if she chose to vacate (Deickler v Abrams, 159 NYS2d 449, affd 4 AD2d 779). That she has voluntarily made payments to the owner since the decedent’s death is not dispositive as against the petitioner. Nor is there any evidence that appellant and the decedent were tenants in common. There was no conveyance or disposition to the two of them, or any written agreement between them to occupy the premises as cotenants. There is no claim that the appellant contributed towards the rent for the subject apartment. While the surviving spouse of a deceased tenant may continue in possession (see, e.g., Rent and Eviction Regulations of City of New York, § 56, subd d), decedent and the appellant were not and could not be husband and wife in law. The decedent could have severed his relationship with the appellant at any time and asserted his right to sole possession of the apartment. An action may be maintained by a personal representative in all cases and in such manner as such action might have been maintained by the decedent (EPTL 11-3.1).

We have considered the arguments in the dissenting opinion which state that eviction would be a violation of the Human Rights Law (Executive Law, art 15). This issue was never raised below or on appeal. In our considered judgment, Hudson View Props, v Weiss (106 Misc 2d 251), relied upon by the dissent, is factually distinguishable from this case and the dissent’s reliance thereon creates an unjustifiable barrier to the rightful possession of these premises by the administratrix.

Asch, J.

(dissenting). I agree with the majority that there is no jurisdictional impediment to the institution of this proceeding by the petitioner in her capacity as administratrix. However, I disagree with the result reached.

The decedent and the appellant were not (and could not be) husband and wife in law. They lived as husband and wife in fact. The undisputed findings show that Ms. Carruth had an unbroken occupancy from 1965 to the present. Her relationship with the decedent was testified to not only by herself but by friends and Parker family members, many of whom thought the couple was actually married. The apartment application submitted by decedent Parker to the owner listed his spouse’s name as “Eleanore” (the first name of appellant). It stated that the apartment would be occupied by Mr. Sanford Parker and Mrs. Eleanore Parker. The appellant decorated and furnished the apartment, entertained guests, and occupied the premises as her primary residence with decedent Parker in a relationship characterized as noted above as “one of husband and wife” until the decedent’s death in February, 1980.

The State Human Rights Law (Executive Law, art 15) proscribes discrimination in the sale, rental or leasing of housing accommodations on the basis of marital status (Executive Law, § 296, subd 5, par [a]). Section 300 of the law provides that “[t]he provisions of this article shall be construed liberally for the accomplishment of purposes thereof.” The City Human Rights Law (Administrative Code of City of New York, § Bl-7.0, subd 5, par [a]) which also proscribes discrimination in housing on the basis of marital status also contains section B1-11.0 which similarly provides for a “liberal” construction of that provision.

In Hudson View Props, v Weiss (106 Misc 2d 251, revd 109 Misc 2d 589, revd on dissenting opn and opn in Civil Ct, 86 AD2d 803), the dissent took the position that where discrimination takes place after the initial leasing, the proscriptions of section 296 of the Executive Law are fully operative. The dissent in Hudson View Props, was, of course, based on fairly narrow grounds, and did not deal with the problem presented here.

However, a husband (and by extension, his estate) may not resort to summary proceedings to evict his wife from jointly occupied property (Rosenstiel v Rosenstiel, 20 AD2d 71). To allow the estate of decedent to resort to summary proceedings in this case and evict decedent’s unmarried lover would appear to be discrimination based solely upon marital status and thus proscribed by the State Human Rights Law.

The public policy of this State is evidenced by the express command that the Human Rights Law is to be liberally construed. Such a liberal construction suggests a preservation of the status quo in this case, i.e., the continued right to occupancy by appellant.

Parenthetically, there has been no claim presented by the estate of decedent that the apartment is required for the personal use of the administratrix or any other distributee. There is no intimation of co-operative plan for the premises now or in the immediate future. The estate has been content to permit appellant to pay the rent directly to the landlord since decedent’s death. It is undisputed that she has met and is continuing to meet that obligation. If appellant is evicted, the estate will either have to continue paying the rent or arrange a sublease for the remaining seven months of the lease which expires in September, 1982. Although no evidence was presented in point, the inference is inescapable that action has been taken against appellant precisely because she had been an unmarried female living with decedent rather than because the interests of the estate are jeopardized.

Bringing the summary proceeding in this situation clearly was in violation of the Human Rights Law of both the State and the City of New York and the public policy as set forth in those statutes.

Accordingly, I would reverse the final judgment entered February 9,1981 (Sparks, J.), and award possession of the subject premises to tenant appellant.

Dudley, P. J., and Tierney, J., concur in a Per Curiam opinion; Asch, J., dissents in a separate memorandum.  