Opinion
May 1, 1967
Judgment of the Supreme Court, Nassau County, dated March 7, 1966, reversed, with $20 costs and disbursements, and defendants' motion for accelerated judgment denied. The papers and proof submitted at Special Term were insufficient to establish that the causes of action asserted by plaintiffs have no merit, or to establish the defense thereto sufficiently to warrant the court, as a matter of law, in directing judgment in favor of defendants. Assuming, but not deciding, that plaintiffs have no cause of action for treble damages, pursuant to section 853 Real Prop. Acts. of the Real Property Actions and Proceedings Law, we are unable to determine that they do not have, at least, a cause of action for compensatory damages resulting from a wrongful eviction under irregular process, vacated and annulled before the commencement of the action (cf. Day v. Bach, 87 N.Y. 56, 61; Fischer v. Langbein, 103 N.Y. 84, 89, 90; Golde Clothes Shop v. Loew's Buffalo Theatres, 236 N.Y. 465, 470). Brennan, Acting P.J., Hopkins, Benjamin, Munder and Nolan, JJ., concur.