The complexities of New York City real estate rules and regulations found their way into a recent decision by the Appellate Division ,First Department  in In re Joy Trezza reported at 923 N.Y.S.2d 108. Here, the court upheld the decision of Surrogate Troy Weber which denied the turnover petition of  Francine Horowitz, a landlord attempting to gain possession of a coop apartment occupied by  the alleged common law spouse of the decedent.

The Surrogate had ruled that the respondent could remain in the apartment at least until it could be determined whether or not he had standing to object to the decedent’s will on the condition that he pay maintenance, insurance utilities and upkeep. Also denied was a request by the landlord that  the respondent pay fair market value rent while in occupancy and while his objections to the will were pending.

The court noted that , if Oberman was successful in pressing his objection to the will, he might end up in sole ownership of the apartment and it was therefore improper to evict him at this early stage of the proceedings.Since most coops do not permit the transfer of an interest in a unit to one who is not a surviving spouse where the previous owner has died, it is clear that a lot is riding on the issue of whether or not the decedent and the objectant were legally married.  New York makes no provision for common law marriage, unlike many other states. If a common law marriage is to be established under New York law (such as would give the objectant the opportunity to assert rights as a surviving spouse) it would be necessary to prove how such a relationship originated by residing in another state which recognizes common law marriage.