WITLOW v. KIP'S BAY JV LLC

Full title: ALLISON WITLOW, Petitioner-Tenant-Respondent, v. KIP'S BAY JV…

Court: Appellate Term of the Supreme Court of New York, First Department

Date published: Feb 20, 2009

2009 N.Y. Slip Op. 50290 (N.Y. App. Term 2009)

Opinion

570670/07.

Decided February 20, 2009.

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.

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Appeal from order (David B. Cohen, J.), entered August 13, 2007, dismissed, without costs, as that order was superseded by the order of November l, 2007.

Robert S. Dean, Center for Appellate Litigation, New York (William A. Loeb of counsel), for appellant.

Robert M. Morgenthau, District Attorney, New York (Stacy Kaplan of counsel), for respondent.

McKeon, P.J., Schoenfeld, Heitler, JJ.

PER CURIAM.

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 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; 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.