Opinion
570631/04.
Decided March 30, 2006.
Landlord appeals from an order of the Civil Court, New York County (Saliann Scarpulla, J.), entered June 7, 2004, after a hearing, restoring tenant to possession and awarding tenant a money judgment of $563.29.
Order (Saliann Scarpulla, J.), entered June 7, 2004, modified to the extent of denying tenant's motion for restoration and, as so modified, affirmed, without costs.
PRESENT: McCooe, J.P., Davis, Schoenfeld, JJ
The respondent landlord leased approximately 25 booths in an indoor flea market on Canal Street to various tenants, including the petitioner. The landlord locked out all of the tenants after various manufacturers brought legal proceedings against the landlord based upon the alleged sale of counterfeit goods at the flea market and after counterfeit goods were seized from tenant's booth pursuant to court order.
The petitioner tenant brought this proceeding pursuant to RPAPL § 713(10) seeking to be restored to possession. After a hearing, the trial court, while finding that there was "an abundance of credible evidence" that counterfeit goods were being sold at petitioner-tenant's booth, directed that tenant be restored to possession since the landlord had not commenced a summary proceeding and could not properly resort to self-help ( see Murphy v. Relaxation Plus Commodore, Ltd., 83 Misc 2d 838 [App Term, 1st Dept 1975]; 1165 Broadway Corp. v. Dayana of New York Sportswear, Inc., 166 Misc 2d 939 [Civ Ct, NY County 1995]).
Since we affirm the trial court's finding that the use of the premises was illegal, and there being no challenge to the damage award, restoration of the tenant to possession pending the landlord's commencement of a summary eviction proceeding would be futile ( see Matter of 110-45 Queens Blvd. Garage, Inc. v. Park Briar Owners, Inc., 265 AD2d 415), and this even assuming that the demised flea market space still exists.
This constitutes the decision and order of the court.