Landlord-Tenant— Illegal Lockout Proceeding—Receiver Illegally Evicted Occupant Without a Judgment of Possession And Warrant of Eviction— Occupant Restored to Possession

A petitioner sought to be restored to possession of the subject apartment and return of all contents of the apartment. In addition to the subject case against a receiver, the petitioner had sued her former husband. Following a trial against the receiver, the court held that an illegal eviction had occurred and the petitioner should be restored to the apartment.

The salient issue was whether an illegal eviction had occurred under New York Admin. Code 26-521. The petitioner testified that the apartment was the marital home of her and her husband and there had been a final order of divorce in a matrimonial case. She explained that following a car accident, she had to attend multiple appointments with health care professionals. Following a visit to the doctor, she found that she could not “get into the house.” The lock had been changed. She could not recover her belongings, including several medications. The petitioner thereafter commenced the instant proceeding, alleging “an illegal lock out.”

The order which appointed the receiver, stated that “the receiver shall take possession of the property and shall take such steps as in his discretion as deems advisable consistent with his fiduciary duties, including the payment of mortgages, taxes and other obligations…attributable to the sale of the property….” The Receiver asserted that the Order permitted him to take possession of the property and that the petitioner had been ordered to vacate the premises on or before June 2, 2017. On June 27, 2017, the Receiver had entered into a contract to sell the property. He claimed that “the house appeared to be abandoned,…,the back yard was overgrown…and…the mailbox was not checked.” He further argued that he changed the locks, because he was been awarded legal possession and did not need “to get a warrant or hire a marshal or a sheriff to take physical possession.”

The court explained that Real Property Actions and Proceedings Law (RPAPL) §711 and NYC Administrative Code §26-521, provide that “an individual who has resided at a premises for thirty consecutive days or longer may not be removed from the premises without a special proceeding, warrant of eviction or court order.” The court further noted that RPAPL §721(9) authorizes receivers to commence summary eviction proceedings “in a court with jurisdiction over such proceedings, but the receiver must also be specifically authorized to bring such proceedings by an order of the appointing court.” Here, the receiver was awarded possession pursuant to the order. The order also provided that “the receiver may…apply to this court for an order…or powers necessary to enable him to properly fulfill his duties….” Thus, “[t]he order specifies that any additional powers/instructions must be granted by the court that issued the original order.”

Additionally, RPAPL 749(1) provides that “upon rendering a final judgment for petitioner the court shall issue a warrant directed to the sheriff of the county…or marshal of the city in which the property…is situated.” RPAPL 749(2) directs that “the 'officer to whom the warrant is directed…shall give at least 72 hour notice, in writing and in the manner prescribed in this article for the service of notice of petition, to the…persons to be evicted…and shall execute the warrant between hours of sunrise and sunset.'” See RPAPL Section 735.

The court further stated that self-help is not permitted under New York law and “[a] party entitled to possession may not evict an occupant without obtaining a judgment of possession and a warrant of eviction.” The receiver's theory that he need not “obtain a warrant or hire a marshal was not supported by any documentation, statute or case law….” Furthermore, reliance on the order was “improper” since the order instructed the receiver to “apply…for an order…or powers necessary to enable him to properly fulfill his duties hereunder.”

Accordingly, the court held that the petitioner had been illegally evicted “without due process of law as no warrant issued,” the petitioner must be restored to possession, given keys to the premises and the receiver must assist the petitioner in obtaining her possessions from a storage facility.

Comment: Under certain limited circumstances, self-help is permitted in a commercial landlord-tenant context, e.g., it may be utilized where a lease has expired by its terms, where the lease authorizes self-help and where the self-help is done in a “peaceable manner.” Experienced attorneys know that such procedure may generate litigation as to “what is a peaceable manner” and whether valuable possessions were damaged or stolen during the eviction process.

Motta v. Sheehan, Civ. Ct., Bx. Co., Index No. 807982/2017, decided Oct. 6, 2017, Sanchez, J.

Scott E. Mollen is a partner at Herrick, Feinstein and an adjunct professor at St. John's University School of Law.