Witlow v Kip's Bay JV LLC

[*1] Witlow v Kip's Bay JV LLC 2009 NY Slip Op 50290(U) [22 Misc 3d 136(A)] Decided on February 20, 2009 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 20, 2009
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Schoenfeld, Heitler, JJ
.

Allison Witlow, Petitioner-Tenant-Respondent, 570670/07

against

Kip's Bay JV LLC, -and- Lila Elman Third-party Respondent-Respondent

Respondent-landlord Kips Bay JV LLC appeals from 1) an order of the Civil Court of the City of New York, New York County (David B. Cohen, J.), entered August 13, 2007, after a hearing, granting petitioner's application for restoration to the apartment premises to the extent of finding that petitioner was illegally evicted and by directing further proceedings "to determine whether petitioner may be restored to the apartment or whether the third-party respondent may remain"; and 2) an order (same court and Judge), entered November l, 2007, which

granted landlord's motion to vacate the foregoing order to the extent of reopening the hearing and adhering to its prior determination.
Per Curiam.

Order (David B. Cohen, J.), entered November 1, 2007, reversed, with $10 costs, and petition dismissed.

Appeal from order (David B. Cohen, J.), entered August 13, 2007, dismissed, without costs, as that order was superseded by the order of November l, 2007.

The record establishes, and the hearing court itself found, that by the time of the alleged illegal lockout in December 2006 tenant had removed her belongings from the apartment premises, had not paid rent for approximately one year, and had stopped paying for utility and [*2]cable service. These demonstrated facts, together with the petitioning tenant's substantial (seven-month) delay in seeking restoration relief and her acknowledged efforts, ultimately unsuccessful, to find a new apartment following the lockout, compel the conclusion that tenant abandoned the premises and, hence, that there was no illegal eviction (see Ritz Entertainment Org. v Unity Gallega of U.S., 166 AD2d 186 [1990]; Faustin v 103
Equity Holding LLC, NYLJ, April 18, 2000, at 26, col 3 [App Term, lst Dept]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: February 20, 2009