Legal Question in Civil Litigation in New York

Re: Small Claims Money recovery questions

You have actually asked some very complex legal questions.

First off, what is your main objective? Is it to EVICT the son? to recover money? both? There is a huge difference as to how you will need to go about it depending on how you answer this question.

If what you truly desire is to evict him, then you do not belong in small claims court, but rather in justice court or housing court (depending on where you live). You would need to bring a nonpayment summary proceeding that typically must be predicated on your first making a 3 day demand for rent. If you make the demand and he doesn't pay, then you can sue to evict him. But there are many defenses to a nonpayment proceeding. If he asserts them and loses, he still will get an opportunity to bring the rent current and can still live there.

It is also important to know how much rent is due - not the amount, but for how many periods. There is caselaw that a landlord can't wait a prolonged period of time (such as 10 months) then bring a nonpayment eviction proceeding. Instead, you would have to sue separately for the money.

Another threshold question is who owns or leases the subject premises. Is it a house or an apartment? If you and your wife are the title owners of the house, or the lessees of the apartment, then arguably she can have immediate family reside with her and you likely don't have a case and this should all be a part of a divorce settlement or judgment.

A word of caution here - you do not have a typical landlord-tenant relationship with the son. You don't have a written lease either, which means you don't have jury waiver clause. So he could potentially request a jury in an eviction case, which is extremely rare, but he could do it if he gets a sharp attorney, and juries are generally not sympathetic to landlords.

Moreover, it is not clear what type of relationship this is. Is it landlord-tenant? Licensor-licensee? tenancy at sufferance? these are complicated legal questions that could best be answered by an attorney after going over all the facts with you. This area of landlord-tenant law is hyper-technical and will determine whether you need to give a 3 day notice at all, and what your rights are.

Further, the absence of a lease makes it hard to sue him in small claims court for the money. You indicated that his mother always paid for him. If he never had a contract/agreement with you, you will have a problem suing him if he never agreed with you to pay $35 a week for room and board.

I know divorce cases bring out lots of emotions and the knee jerk reaction is to take the offensive but I think it is probably more advisable that you look at this rationally to avoid further aggravation. This should all really be settled in the divorce action. If you attack her son, I would venture to guess that the gloves will come off and she will fight you even harder on the divorce case, and that will not be productive.

Discuss this with your divorce attorney.