Upon the following papers numbered 1 to 2 read on this motion to restore respondent to possession Notice of Motion/Order to Show Cause and supporting papers 1-2; Notice of Cross Motion and supporting papers _; Answering Affidavits and supporting papers_; Replying Affidavits and supporting papers _; Filed papers _; Other exhibits _; and following an evidentiary hearing, ORDER FOLLOWING HEARING The motion by respondent Hugo A. Licona Palma for an order to be restored to possession of the residential premises located at 26 Oakland Avenue, Central Islip, New York, and, more specifically, as set forth within the Petition, the room on the lower level, turn right, the second door on the right (“the Premises”), is decided as follows. The instant non-payment proceeding was commenced by petitioner pro se on December 13, 2022 alleging rent arrears from March 2022 through December 2022 in the amount of $5,600 (Petition, 4). On January 26, 2023, respondent brought this motion to be restored to possession by Order to Show Cause, asserting that on January 18,2023, “Landlord/petitioner wrongfully broke down [the] door to respondent’s room and stole all [of] respondent’s possessions” (Affidavit in Support of Motion, at 5A). Respondent further alleges that since that time, he has been denied entry to the Premises and his possessions have not been returned. A hearing was held on February 7, 2023, at which both parties appeared with counsel. Without objection, the Court bifurcated the underlying claim for the non-payment of rent from the instant motion for interim relief; namely, to be restored to possession. Petitioner’s non-payment of rent claims will be adjudicated at a future date as set forth below. Respondent moves to be restored pursuant to Real Property Actions and Proceedings Law (“RPAPL”) §768. The statute provides, in pertinent part, that “[i]t shall be unlawful for any person to evict or attempt to evict an occupant of a dwelling unit who has…entered into a lease with respect to such dwelling except to the extent permitted by law pursuant to a warrant of eviction or other order of a court of competent jurisdiction or a governmental vacate order by: *** (iii) engaging or threatening to engage in any other conduct which prevents or is intended to prevent such occupant from the lawful occupancy of such dwelling unit or to induce the occupant to vacate the dwelling unit including, but not limited to, removing the occupant’s possessions from the dwelling unit, removing the door at the entrance to the dwelling unit; removing, plugging or otherwise rendering the lock on such entrance door inoperable, or changing the lock on such entrance door without supplying the occupant with a key. RPAPL §768(1)(a). The statute further provides that it is “[u]nlawful for an owner of a dwelling unit to fail to take all reasonable and necessary action to restore to occupancy an occupant of a dwelling unit who either vacates, has been removed from or is otherwise prevented from occupying a dwelling unit as the result of any of the acts or omissions prescribed in paragraph (a) of this subdivision….” (Id. at 768(1)(b)).1 In the instant matter, the credible testimony demonstrated that since on or about January 18, 2023, petitioner has unlawfully denied respondent access to the Premises by removing, or allowing to be removed, his possessions without consent, dislodging the door to the Premises, and failing to take reasonable and necessary steps to return respondent to the property. In opposition, petitioner does not deny that respondent was wrongfully removed. Rather, petitioner denies participating in the unlawful act and casts blame on another tenant to whom she recently rented the room across the hall from respondent. Petitioner’s position is not credible and is belied by the evidence. On direct examination, petitioner testified that at about the same time respondent was unlawfully evicted, she rented the room across the hall from respondent to another unidentified tenant. Without any corroborating evidence, she claims that although this new tenant has not taken possession of the room he purportedly rented, the new tenant removed respondent’s door, took respondent’s possessions without his consent and moved them into his room (which he does not occupy), and locked the door, thereby denying respondent entry or access to his possessions. Neither petitioner nor anyone else, for that matter, has provided respondent with the keys or access to the room where his possessions were removed. The Court notes that the unidentified tenant was not called to testify, and respondent did not personally observe the unlawful removal of his possessions. It is clear, however, even giving petitioner the benefit of the doubt, that she failed to take any action to assist in restoring respondent to the Premises, even after learning of the unlawful removal. Towards this end, petitioner failed to offer a plausible explanation as to how the new tenant gained access to respondent’s room, the reasons for permitting this conduct, and her failure to remedy the wrong on behalf of respondent. Petitioner did credibly testify that the unidentified individual performed these acts as a favor to her for whatever concerns she has about respondent. However, regardless of the identity of the perpetrator, even if the series of events occurred without petitioner’s knowledge or consent, which the Court finds highly improbable, that would not abdicate petitioner from her legal obligations and duties to respondent; namely, providing the Premises as contracted, and, further, complying with the implied warranty of habitability and, after the fact, making good faith efforts to restore respondent to possession. Petitioner’s continuing refusal to offer respondent access to his possessions, even at this juncture, is further indicia of complicity. Petitioner’s testimony was not credible, and her claim that she is “fearful” of respondent for alleged unlawful conduct, which she claims to have personally observed in the Premises, was not supported by any of the credible evidence and is refuted by the pleadings. Petitioner elected to proceed by way of this non-payment proceeding without terminating the tenancy for unlawful activity, and no where within the petition is it alleged that respondent has engaged in unlawful activity. Based on the foregoing, the Court finds that petitioner has unlawfully removed respondent from the Premises in violation of RPAPL §768, and, as a result, respondent is entitled to be immediately restored to possession, together with his possessions and with the door intact (See Chowdhury v. Sadiq, 2021 NYLJ LEXIS 115 [Queens Civ. Ct. Feb. 24, 2021]; York v. West Kingsbridge, LLC, 133 NYS3d 783 [Bronx Civ. Ct. 2020]; Coleman v. Murray, 934 NYS2d 33 [Suffolk Cnty. Dist. Ct. 2011]). Although not offered to date, since it does not appear the Premises were re-rented, petitioner can restore respondent by replacing the door, granting access, and returning his possessions. The Court’s determination in no way prevents petitioner from pursuing her claims for unpaid rent, subject to any proper offsets and affirmative defenses, or commencing a separate holdover proceeding based upon any sustainable breaches of the tenancy by respondent, but only after respondent is properly restored to possession. Respondent may pursue any damages he may have sustained as a result of petitioner’s conduct, either as a timely asserted counterclaim or a separate plenary action. Based on the foregoing, it is hereby ORDERED, that unless proof is submitted to the Court within three (3) calendar days of the date of this Order that petitioner has restored respondent and his possessions to the single room located at the Premises — 26 Oakland Avenue, Lower Level, Turn Right, 2nd door on the right — Central Islip, New York, the Sheriff of Suffolk County, at petitioner’s expense, shall restore respondent to possession to the aforementioned single room, and, if necessary, break and enter into the dwelling and Premises, and remove and change the locks, in order to restore respondent to possession in accordance with the Court’s determination; and it is hereby further ORDERED, that in light of the time sensitive nature of the relief awarded, the Clerk of Court is directed to immediately send a copy of this Order to counsel for both parties via electronic mail or facsimile; and it is hereby further ORDERED, that immediately upon receipt of this Order, respondent’s counsel shall serve a copy of same on the Sheriff of Suffolk County, at 360 Yaphank Avenue, Yaphank, New York 11980; and it is hereby further ORDERED, that the matter is adjourned to March 9, 2023, in which the parties are directed to appear for adjudication of the remaining claims. This constitutes the Decision and Order of the Court. Dated: February 8, 2023
