West Broadway Glass Co. v Namaskaar of Soho, Inc.
Decided on May 3, 2006
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: DAVIS, J.P., SCHOENFELD, JJ
West Broadway Glass Company, Petitioner-Landlord-Appellant,
Namaskaar of Soho, Inc., Respondent-Tenant-Respondent.
Landlord, as limited by its brief, appeals from (1) a final judgment of the Civil Court, New York County (Manuel J. Mendez, J.), entered May 12, 2005, after a nonjury trial, which, inter alia, awarded treble damages to tenant for wrongful eviction in a nonpayment commercial summary proceeding, and (2) an order (same court and Judge), entered June 6, 2005, which denied so much of its post-trial motion to set aside the court's finding that tenant was wrongfully evicted and entitled to treble damages.
Order (Manuel J. Mendez, J.), entered June 6, 2005, modified to the extent of vacating so much of the final judgment as awarded treble damages, and as modified, affirmed, without costs. Appeal from the final judgment (Manuel J. Mendez, J.), entered May 12, 2005, dismissed as superseded by the appeal from the subsequent order.
The evidence, fairly interpreted, supports the trial court's finding that landlord wrongfully evicted tenant by changing the locks, retaining the keys and imposing what the court aptly described as an "elaborate, cumbersome and unpredictable procedure" for access (see Barash v Pennsylvania Term. Real Estate Corp., 26 NY2d 77, 83 ; Riverbay Corp., v Dawson, NYLJ June 20, 1991, p. 25, col. 4 [App Term, 1st Dept]). However, on this record, which shows that landlord's attempt to recover possession, while unlawful, was actuated by concerns over tenant's unauthorized construction at the demised premises, we find that an award of treble damages is unwarranted (see e.g. Sills v Dellavalle, 9 AD3d 561 ; Lake Anne Homeowners Assn. v Lake Anne Realty Corp., 225 AD2d 736 ). Further, we note that tenant's motion to amend the answer was granted only to the extent of permitting it to interpose its wrongful eviction claim as an affirmative defense, not as a counterclaim, to the nonpayment petition.
This constitutes the decision and order of the Court.
Decision Date: May 3, 2006