A New York City eviction court denied a motion for summary judgment, ruling that a tenant in a polyamorous relationship with the lease holder was entitled to the same eviction protections as those in two-person relationships. In its denial of summary judgment, the court found that the holdover tenant may be entitled to take the lease in his name after the death of his partner. What could the recognition of polyamorous relationships mean not only for property disputes in the future, but for employers and insurance carriers moving forward?
Scott Anderson (decedent) was the tenant of record when the last renewal lease expired on December 21, 2021. He had passed away approximately two months before the lease expired. A licensee holdover proceeding was filed by the landlord (petitioner) against Markyus O'Neill (respondent) after Anderson passed away. O'Neill claimed that he was a non-traditional family member and was entitled to continue the lease in his own name.
Petitioner served respondent with a licensee notice to quit pursuant to Real Property Actions and Proceedings Law (RPAPL). They asserted that O'Neill and decedent did not jointly own property or otherwise commingle their financial assets. Also noted were contentions that they did not hold themselves out as a family, or celebrate major holidays together. Petitioner also pointed out that decedent had a life partner (Robert Romano) of over 25 years who lived at another location. Based on this, petitioner claimed that O'Neill was merely a roommate and not entitled to any rights as a non-traditional family member. In support of these contentions, Romano submitted an affidavit confirming the relationship and presented proof that they shared a cellphone and credit card accounts, were beneficiaries on one another's retirement accounts, held themselves out as family and traveled together. He stated that they "formed a life together, yet kept their own apartments in order to provide them comfort and space." Romano was aware of O'Neill and the fact that he lived with Anderson, but they were not friends.
Respondent O'Neill also submitted evidence of his relationship with decedent stating that they regularly spent time together and shared the one bedroom apartment in question together. He stated that he and O'Neill became "more than friends, but agreed to keep their relationship quiet and discreet." O'Neill stated that he moved into the apartment in 2012 and knew about Anderson's relationship with Romano although he claims that he spent "substantially more time with Anderson than Romano did." O'Neill admitted that he and Anderson never held themselves out as family and that he was never invited to visit Anderson's family in Maine but Romano regularly was invited. O'Neill contributed to the rent and other apartment expenses in cash obtained through tips he received in his bartending job. He also regularly made deposits into a bank account that he later came to learn was a joint bank account held by Romano and Anderson.
Petitioner responded to O'Neill's assertions, calling his claim as a nontraditional family member a "fairytale." They point out that compared to the documentation and proof supplied by Romano, the evidence he has provided to establish such a relationship is wholly insufficient. Petitioner also opposed O'Neill's request for further discovery arguing that it will waste time and not produce anything of further import.
Noneviction Protection in New York City
New York has a long history of championing gay rights even before gay marriage was legalized by the Supreme Court of the United States. In the landmark decision of Braschi v. Stahl Assocs. Co., 74 NY2d 201 (1989), the New York State Court of Appeals was the first appellate court in the U.S. to "recognize that a non-traditional, two-person, same-sex, committed, family-like relationship is entitled to legal recognition, and that the non-traditional family member is entitled to receive noneviction protections."
Braschi broadly construed the rent control laws in place at the time to recognize these types of relationships in regard to rent control and eviction protections before they were recognized on the national stage. Although Braschi is heralded as ground-breaking along with the later Supreme Court decision in Obergefell, et. al. v. Hodges et al., 576 U.S. 644, 135 S. Ct. 2584 (2015), both cases limited their findings to relationships involving two people. The current case obviously differs in the fact that it involves a relationship with three people.
In determining whether the finding in Braschi could be extended to the case at hand, the court quoted a portion of Braschi, which stated: "The determination as to whether an individual is entitled to noneviction protection should be based upon an objective examination of the relationship of the parties." In making this assessment, the lower courts of this State have looked to a number of factors, including:
- The exclusivity and longevity of the relationship
- The level of emotional and financial commitment
- The manner in which the parties have conducted their everyday lives and held themselves out to society, and
- The reliance placed upon one another for daily family services
It should also be noted that the presence or absence of one or more of these factors is not dispositive since it is the totality of the relationship as evidenced by the dedication, caring and self-sacrifice of the parties which should, in the final analysis, control. Braschi v Stahl Assocs. Co., 74 NY2d 201, 212-13 .)"
Soon after the Braschi decision, the New York legislature amended the Rent Stabilization Code to add evidentiary factors to help determine the extent of a person's "emotional and financial commitment to the former tenant of record." Rent Stabilization Code [9 NYCRR] § 2204.6 [d]  [i] [a]-[h]. The factors enumerated were:
- Longevity of the relationship
- Sharing or relying upon one another for payment of household or family expenses
- Intermingling of finances as evidenced by, among other things, joint ownership of bank accounts, personal and real property, credit cards, loan obligations, sharing a household budget for purposes of receiving government benefits, etc.
- Engaging in family-type activities by jointly attending family functions, holidays and celebrations; social and recreational activities, etc.
- Formalizing of legal obligations, intentions, and responsibilities to each other as executor and/or beneficiary, power of attorney, authority to make health care decisions, etc.
- Holding themselves out as family members to other family members
- Regularly performing family functions such as relying upon each other for daily family services; and/or
- Engaging in any other pattern or behavior, agreement, or other action which evidences the intention of creating a long-term, emotionally committed relationship.
The legislature also made it clear that evidence of a sexual relationship is not relevant in this analysis. Courts utilizing these factors have also found that documentary evidence is welcome but not always necessary, and that testimonial evidence may be sufficient to establish an emotional and financial commitment. 530 Second Avenue Co., LLC v. Zenker, 160 AD3d 160 (1st Dept. 2018). In addition, the nontraditional family member does not have to bring evidence of all of the factors enumerated, but rather the court will consider the proffered evidence in its totality. Arnie Realty Corp. v. Torres, 294 AD2d 193 (1st Dept. 2002).
Nontraditional Relationships Have Evolved Since the Braschi Decision
Although in its time the Braschi decision was revolutionary, the court here found that it is not an accurate measure of how modern relationships are defined. "Paradoxically, the Braschi court's formulation of what comprises a nontraditional relationship is rooted in traditional ideology. However, what was 'normal' or 'nontraditional' in 1989 is not a barometer for what is normal or nontraditional now…. indeed the definition of family has morphed considerably since 1989." In this case, the court considered whether in the spirit of Braschi, courts should now adopt a more modern and inclusive view of a family, such as a polyamorous relationship.
Merriam-Webster's Collegiate Dictionary (11th ed. 2020) defines a relationship as "the state of being related or interrelated." In this most recent case, Anderson, O'Neill and Romano all had a relationship to one another in varying degrees. All three knew of the others. The court here reasoned that it did not matter that O'Neill and Romano did not get along as the happiness of a relationship is not determinative, or included in any of the factors to determine if a committed relationship exists between the parties. Considering the affidavits from both Romano and O'Neill it appeared to the court that Anderson was in a committed relationship with each of them. The fact that O'Neill did not always contribute a large amount to household expenses also does not impact his rights to noneviction protection. The court stated, "the existence of a triad should not automatically dismiss respondent's claim to noneviction protections."
The court went on to find that because this issue remains debatable, the motion for summary judgment must be denied. Stone v. Goodson, 8NY2d 8, 12 . Since noneviction protections must be assessed based on the totality of the circumstances and not all factors need be present, O'Neill has provided sufficient evidence to defeat a summary judgment and move on to the next phase. Consequently, the polyamorous relationship did not automatically preclude his request for noneviction protection under the Rent Control law.
The implications of the recognition of polyamorous relationships for purposes of eviction protections presents even further reaching questions and possible implications for other industries as well. If polyamorous relationships are recognized by the state as legal marriages in a similar manner as common law marriage between two people who cohabitate, what impact or new obligations might this place on employers? Will health benefits evolve to include multiple "spouses" of an employee? Will insurance companies limit how many "spouses" can be claimed for the purposes of benefits? Will the criteria for a spouse mirror the factors introduced in the rent control laws such as longevity, financial comingling, etc.? Will the Family Medical Leave Act be implicated for more than one spouse? Where is the line drawn of how many individuals can be in a polyamorous relation?
Many unanswered questions present themselves as an evolving definition of what constitutes "family" filters through courthouses and legislatures across the country. This Court decision may clash with many already established policies and ordinances. Will we be seeing an uptick in amended legislation? The answers remain elusive, but it is certainly an area to watch closely moving forward. The attorneys at Wood, Smith, Henning & Berman are closely following new developments on this front and stand ready to problem-solve and work through these questions as they evolve. Please do not hesitate to reach out to