STATE LAW – RPAPL 853 – DIDN’T PROVIDE A REMEDY IN THIS INSTANCE
5 Star Holdings, NY, LLC leased a 13,000 square foot store from Kohl’s Department Stores, Inc., and when the former stopped paying the rent, the latter commenced a summary proceeding to evict.
While the Nassau County District Court granted a judgment in Kohl’s favor, and 5 Star was evicted, on appeal the Appellate Term (9th & 10th Jud.Dists.) reversed the underlying determination and directed that the landlord-tenant proceeding be dismissed.
5 Star then filed suit in the Nassau County Supreme Court alleging, among other things, that it was entitled to recover damages for wrongful eviction pursuant to state law – RPAPL 853. But when Kohl’s moved to dismiss that claim, arguing that a viable cause of action hadn’t been asserted, the court agreed and granted the dismissal request.
On appeal, the Appellate Division, Second Department, noted that the statute in question provides for damages when “a person is disseized, ejected, or put out of real property in a forcible or unlawful manner, or, after he [or her] has been put out, is held and kept out by force or by putting him [or her] in fear of personal violence or by unlawful means, he [or she] is entitled to recover treble damages in an action therefor against the wrong-doer."
Since none of those elements applied – as 5 Star was supposedly not “evicted by unlawful means within the meaning of the statute” – the AD2 thought the motion had been “properly granted,” and left the dismissal undisturbed.
Was that wrongful eviction case, wrongfully decided?
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DECISION