Martinez v Ngalam

[*1] Martinez v Ngalam 2018 NY Slip Op 51437(U) Decided on October 15, 2018 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 15, 2018
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Gonzalez, J.P., Cooper, Edmead, JJ.
570242/16

Ercia Martinez,

against

Tita S. Ngalam, Respondent-Landlord-Respondent.

Petitioner-tenant appeals from an order of the Civil Court of the City of New York, Bronx County (Enedina Pilar Sanchez, J.), entered on or about January 4, 2017, after a nonjury trial, which dismissed the petition seeking restoration to the premises in a special proceeding brought pursuant to RPAPL § 713(10).

Per Curiam.

Order (Enedina Pilar Sanchez, J.), entered on or about January 4, 2017, affirmed, without costs.

A forcible entry and detainer proceeding does not lie in the circumstances here present, since respondent-landlord entered and remained in possession of the commercial premises, not by "force or unlawful means" (RPAPL 713[10]), but pursuant to a lawful (stipulated) final judgment of possession and a duly issued warrant of eviction entered in a nonpayment proceeding between the parties, and petitioner-tenant's applications to vacate that judgment were denied (see Ngalam v Martinez, 53 Misc 3d 155[A], 2016 NY Slip Op 51761[U] [App Term, 1st Dept 2016]). The valid Civil Court judgment awarding possession to landlord is a "complete defense" to tenant's claim that she was wrongfully evicted (Dinolfi v Berkeley Assoc. Co., 98 AD2d 644, 644 [1983]; see Campbell v Maslin, 91 AD2d 559 [1982], affd 59 NY2d 722 [1983]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: October 15, 2018