A Brooklyn, NY Housing Court judge has denied the request of a man to evict his former wife. The judge dismissed the holdover proceeding brought by Mr. O against Ms A., holding that the familial relationship between the two barred her eviction from the apartment.

The couple moved into the apartment in 2007 and married in June 2009. In September 2010 Mr. O obtained a default judgment annulling the marriage. Ms A did not learn about the annulment until April 2011 and is now seeking to vacate the default judgment. In addition to the couple’s 5-year-old son, Ms O’s two other children also live in the unit.

She argued that Housing Court lacked jurisdiction over the matter and her right to possession of the premises was grounded in her relationship to Mr. O. He responded that the eviction did not concern family matters and the annulment meant the marriage “never happened in the first place.” He also noted he was not trying to evict the couple’s pre-marriage son.

The judge sided with Ms. A, observing that New York Family and Supreme courts are the general jurisdictions to adjudicate the use and possession of a family home. Since the couple moved to the residence “as a family,” Mr. O cannot, merely by obtaining a default judgment to annul the marriage, constitute Ms A a month-to-month tenant whom he may oust by eviction proceedings. Similarly an eviction cannot be used to “abridge” Ms. A’s parental rights prior to custody and support matters being settled.

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