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Decided on January 4, 2010
Rochester City Ct

2009 LT 17122
Eric J. Metzler, Esq. (counsel for the petitioner) Robert Vitale, Esq. (counsel for the respondent) Thomas Rainbow Morse, J.
In this summary proceeding, a husband asks the court to evict his wife from the marital home where she and their minor child reside. When this action was commenced, the parties were living apart and though a divorce action had not been brought at that point, a Family Court hearing officer had made and was reconsidering prior decisions regarding support and financial responsibilities involving the residence at issue here. Also, while the parties first appeared here pro se, they are now both represented by counsel and a one of the litigants has sued for dissolution of their marriage. This court has raised and still harbors concerns relating to the legality and advisability of continuing this City Court summary proceeding which now parallels the Supreme and Family Court actions.
At the outset, it should be noted that, contrary to the petitioner's position, it is this court's view that his subsequent agreement before the family court hearing officer that he would pay the mortgage as part of his support obligation superceded and vitiated the lease agreement between the parties. Thus, at the time this action was commenced, there was no landlord-tenant relationship between the husband and wife. Therefore, a non-payment proceeding based in that lease may not be properly maintained. Even if this view is incorrect, however, for the reasons which follow, the court declines to evict the petitioner's wife and child from the marital home.
As counsel for the petitioner correctly notes, the Fourth Department held over thirty-five years ago that a spouse is not necessarily precluded from moving to evict his or her partner from the marital home. Halaby v. Halaby, 44 AD2d 495 (4th Dept., 1974). Moreover, our courts have ruled that a separated couple can execute a binding rental agreement which might form the basis of a summary action to recover marital real property. Tausik v. Tausik, 11 AD2d 144 (1st Dep't 1960), order aff'd, 9 NY2d 664 (1961); see also McKinney's General Obligations Law

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