The defendants' unlawful eviction of the plaintiff was not unintentional. The self-help measures undertaken by the defendants, including the shutting off of the plaintiffs utilities in the middle of February, the padlocking of the entrance of the building, and the ultimate subdivision of her former apartment all effectuated an unlawful eviction warranting the award of treble damages ( see Moran v Orth, 36 AD3d 771, 773; O'Hara v Bishop, 256 AD2d 983; Rocke v 1041 Bushwick Ave. Assoc., 169 AD2d 525; Lyke v Anderson, 147 AD2d at 31).
Moreover, Orth ultimately commenced a third nonpayment proceeding against Moran, which, like the petitions in the two prior proceedings, sought more rent than that to which she was entitled, and Orth never secured a warrant of eviction, although she stated at trial that she had done so. Under these circumstances, an award of treble damages was appropriate ( see O'Hara v Bishop, 256 AD2d 983). However, the trial court providently exercised its discretion in finding that punitive damages were unwarranted.
RPAPL 853 provides that "[i]f a person is disseized, ejected, or put out of real property in a forcible or unlawful manner, or . . . is held and kept out by force or by putting him in fear of personal violence or by unlawful means, he is entitled to recover treble damages in an action therefor against the wrong-doer." Considering the Legislature's amendment of the statute to include evictions undertaken in an "unlawful manner" in addition to those executed by force, treble damages can be sustained without a showing of physical force or violence in ejecting the tenant ( see O'Hara v. Bishop, 256 AD2d 983, 984; Lyke v. Anderson, 147 AD2d 18, 24). Contrary to petitioners' argument, however, a grant of treble damages is permissive rather than mandatory ( see Lyke v. Anderson, supra at 26-28).
The record reflects that defendant attempted to give plaintiff proper notice, that there was no malice involved in his attempt to recover possession and that there was a reasonable basis underlying defendant's desire to have plaintiff vacate the premises. Finding no abuse of discretion, the denial of treble damages ( see Lyke v. Anderson, 147 AD2d 18, 26-27; see generally O'Hara v. Bishop, 256 AD2d 983) and punitive damages ( see Spiegel v. Goodman, 204 AD2d 430, 431, lv denied 84 NY2d 806, cert denied 514 US 1109; Bianchi v. Hood, 128 AD2d 1007, 1008) was proper. Ordered that the amended order is affirmed, without costs.
We have iterated that "[w]here a court directly passes upon an issue which is necessarily involved in the final determination on the merits, it becomes `the law of the case'" (Brown v. State of New York, 250 A.D.2d 314, 320). When we affirmed the determination that the gravel at issue was "readily observable" to this plaintiff, such determination was essential to the dismissal of the Labor Law § 200 claim, "and not merely obiter dictum" (Papa Gino's of Am. v. Plaza at Latham Assocs., 144 A.D.2d 172, 172; cf., Matter of McNamee, Lochner, Titus Williams [Killeen], 267 A.D.2d 919, 922); the doctrine of the law of the case therefore precludes further litigation of this issue (see, O'Hara v. Bishop, 256 A.D.2d 983; Brown v. State of New York, supra; Papa Gino's of Am. v. Plaza at Latham Assocs., supra). Accordingly, Supreme Court properly dismissed the Labor Law § 200 claims against these defendants on that basis.
In our view, Supreme Court should have granted plaintiff summary judgment and issued a declaration in plaintiff's second lawsuit regarding Town Law § 267-a (6). First, we agree with plaintiff that Supreme Court's September 3, 1998 decision in the second lawsuit represents the law of the case on this issue, and the court's ruling therein was that the Marinos' appeal to the ZBA did not trigger the statutory stay provisions of Town Law § 267-a (6) (see, Brown v. State of New York, 250 A.D.2d 314, 320; see also, O'Hara v. Bishop, 256 A.D.2d 983, 984;Gould v. International Paper Co., 223 A.D.2d 964, 965, lv denied 88 N.Y.2d 808). Thus, plaintiff's sole request in its complaint in the second lawsuit for declaratory relief should have been granted.
The amendment to the statute has resulted in some variation in the criteria applied in assessing treble damages against a wrongdoer. The Appellate Division, Third Department has permitted the recovery of punitive damages in addition to the statutory treble damages (Bianchi v. Hood, 128 A.D.2d 1007, 1008) and endorsed the use of nominal damages where actual damages cannot be established (O'Hara v. Bishop, 256 A.D.2d 983, 984). The Appellate Division, Second Department, by contrast, has taken the position that "multiple damages statutes are penal in nature and are to be strictly construed" (Lyke v. Anderson, 147 A.D.2d 18, 28), indicating, in dicta, that it would be inappropriate to assess treble damages "where a tenant is dispossessed by 'unlawful means' which are unintentional or which result from a reversal of a determination in the landlord's favor or from a jurisdictionally defective eviction proceeding" (supra, at 28, citing Mannion v. Bayfield Dev. Co., 134 Misc.2d 1060 [award of treble damages under RPAPL 853 is discretionary, not mandatory]; e.g., Lemish v. East-West Renovating Co., 156 A.D.2d 313, 314 [subsequent reversal and vacatur of warrant]).
While evidence adduced at the statutory hearing can rectify deficiencies in a notice of claim's descriptions of location and injuries (see, D'Alessandro v. New York City Tr. Auth., 83 N.Y.2d 891; Williams v. New York City Hous. Auth., 179 A.D.2d 523), information supplied at the hearing may not be used to amend the theory of liability set forth in the notice of claim where, as here, amendment would change the nature of the claim (see, Torres v. New York City Hous. Auth., 261 A.D.2d 273, lv denied 93 N.Y.2d 816;Gonzalez v. New York City Hous. Auth., 181 A.D.2d 440). The court properly denied the cross motion insofar as it sought to dismiss the claim for treble damages for unlawful eviction under an invalid warrant (see, RPAPL § 853 Acts.; O'Hara v. Bishop, 256 A.D.2d 983). Plaintiffs' failure to appeal precludes consideration of their arguments with respect to the dismissal of their claim for punitive damages or the grant of summary judgment upon defendant Housing Authority's claim for rent arrears.
If a person is disseized, ejected, or put out of real property in a forcible or unlawful manner, or, after he has been put out, is held and kept out by force or by putting him in fear of personal violence or by unlawful means, he is entitled to recover treble damages in an action therefor against the wrongdoer (emphasis supplied). This statute is directed at unlawful evictions of tenants or other lawful occupants of property who have been in "actual physical possession" (ZCWK Assocs. v. Spadaro, 233 A.D.2d 126, 127; compare,Lyke v. Anderson, 147 A.D.2d 18; see also, Gold v. Schuster, 264 A.D.2d 547, 550, 694 N.Y.S.2d 646, 649; O'Hara v. Bishop, 256 A.D.2d 983; Rocke v. 1041 Bushwick Ave. Assocs., 169 A.D.2d 525; Bianchi v. Hood, 128 A.D.2d 1007; Sam Mary Housing Corp. v. Jo/Sal Market Corp., 100 A.D.2d 901, affd 64 N.Y.2d 1107). Here, it is undisputed that plaintiff never actually possessed or occupied the property — nor was there any attempt on her part to occupy this property — at the time Plaza's encroachment commenced or at any time throughout the encroachment.
To arrive at the amount of treble damages, there must first have been ascertainable compensatory damages, which have not been substantiated. Mannion v. Bayfield Development Co. , 134 Misc.2d 1060, 514 N.Y.S.2d 186 (Sup. N.Y. Co. 1987) ; O'Hara v. Bishop , 256 A.D.2d 983, 682 N.Y.S.2d 291 (3rd Dept. 1998). Unfortunately, zero multiplied by three amounts to zero.