Legal Question in Real Estate Law in New York

Re: Can this go to small claims court?

Any dispute can go to court, the question is who will prevail. Since you both signed the lease, you have equal rights to remain there. If the lease is silent on who is the primary tenant, this may require a court decision, especially if the rent is not paid (you do not say if he continues to contribute to the rent). Your argument, if you want to stay there, is that he abandoned his right to remain or take over the lease when he vacated the apartment by moving out. This could terminate his contribution to rent payment which may be a hardship to you if you need his financial assistance. If the matter is litigated, the court will probably side with you on 2 grounds: he removed himself from the apartment, so this could be interpreted as abandoning his rights, and you have a school-age child and need the location to maintain the child's status in school. I believe, but I am not the judge, that, at worst, you will be given a reasonable time period to relocate, if he is found to have superior rights to you.

Re: Can this go to small claims court?

Unfortunately, any dispute can wind up in court, including the one you are describing. From the facts it is not clear who would prevail. You should have an attorney review the lease. In addition, there are numerous questions which need to be addressed before a decision regarding the legal outcome can formulated. For example, are you both equal tenants under the lease? Has there been an abandonment by one of the tenants? Has the rent been paid by both tenants? Assuming you are an equal tenant under the lease, there may be some factors in your favor, such as a possible abandonment, lack of contribution, as well as the equities of having a school aged child and the intention to remain in possession. I would suggest that you speak to an attorney to see what rights you may have.