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A N 8 8 D 8 B 1 AR SINCE www. NYLJ.com Volume 256—NO. 44 Thursday, September 1, 2016 Outside Counsel Expert Analysis Common Right to Use Self-Help To Evict a Commercial Licensee

hen a commercial ten- to evict an occupant. With the fore-

ant stays beyond the By going in mind counsels should be term of a and Joshua reminded that a commercial licensor, Kopelowitz refuses to leave, own- who is unshackled by the terms of a ers often have little lease agreement, may more readily Walternative but to go through a time- use self-help to evict a licensee so consuming and expensive court pro- unwanted commercial occupant long as no force or unlawful tactics cess. Any attempt to evict the tenant of their land. With the foregoing in are used to effectuate the . by changing the locks may subject mind, most attorneys would be wise Initially, it is important to under- the owner to severe penalties. Sig- to caution their clients to proceed to stand the difference between a lease nificantly, under Section 853 of New Civil Court, commence a commercial (which governs a tenancy) and a York’s Real Actions and holdover proceeding, secure a judg- license agreement (which governs Proceedings Law (RPAPL), a victim ment of and, thereafter, a license). The court in Echelon of an unlawful eviction may recover Photography v. Dara Partners, 816 an amount that is three times the NYS2d 695 (Civ Ct NY Co 2006), damages from the malfeasant. To be A commercial licensor, who is aptly described a license agreement clear, RPAPL 853 states: unshackled by the terms of a as follows: If a person is disseized, ejected, lease agreement, may more The difference between a license or put out of in a readily use self-help to evict a and a lease is that a lease con- forcible or unlawful manner, veys to the lessee absolute pos- or, after he has been put out, is licensee so long as no force or session and control of the prem- held and kept out by force or unlawful tactics are used to ises for a specific term and rent, by putting him in fear of per- effectuate the eviction. subject to the lessor’s rights, sonal violence or by unlawful whereas a licensee does not means, he is entitled to recov- obtain exclusive possession, and have the marshal perform an eviction er treble damages in an action its right to possession is revo- of the commercial occupant. Such therefore against the wrong-doer. cable at will and without cause. advice is sound, and in most cases, (Finklestein and Ferrara, Land- As you can imagine, RPAPL 853 should be followed. lord and Tenant Practice in New gives many attorneys pause when Of course, it is the preference of York §3:22, 23 [West’s N.Y. Prac counseling clients regarding an most every owner to change the Series 2004]; American Jewish locks and throw away the key rather Theatre v. Roundabout Theatre Joshua Kopelowitz is a member of Rosenberg than go through the often long and Co., 203 A.D.2d 155, 156 [1st & Estis. expensive process of going to court Dept. 1994]). Thursday, September 1, 2016

As noted, a tenant typically occu- put to use by a landlord. Thus, while is a servant or mere licensee…In pies and has exclusive possession self-help by a landlord is a feasible such a case the possession is not of a premise pursuant to a lease (and aggressive strategy), a landlord changed, for it remains in the mas- agreement. While regaining pos- needs to be sure that it has satisfied ter or licensor.” session through legal methods is all three elements set forth above In P&A Brothers v. City of New the safest process, it is well estab- before resorting to self-help or risk York Dept. of Parks & Recreation, lished that a landlord may, under having to bear the penalty of treble 184 AD2D 267 (1st Dept. 1992) the limited circumstances, use self-help damages. First Department reiterated this to evict a commercial tenant.1 Land- well-settled rule when it held that lords may only exercise this com- License “a licensee involved in an arms- mon law right to self-help if (1) the On the other hand, a commercial length commercial relationship… lease expressly reserves that right, licensor is not so limited. A licensor is subject to ouster…without legal (2) tenant was in fact in default of does not need to concern itself with process.” Notably, the foregoing its obligations under the lease, restrictive language in a lease. Like- was also re-affirmed in World Evan- and (3) the eviction is performed wise, it is irrelevant whether the gelization Church v. Devoe Street peaceably.2 Baptist Church, 27 Misc.3d 141(A) Although it may sound simple (App Term 2nd, 11th and 13th Jud enough it rarely is. In a practice that The Pelt court explained that the Dist 2010). Therein, the Civil Court is dominated by strict conformity statutory right of an owner to properly found that petitioner, to statute and complicated lease commence a licensee summary which had been given a contrac- language it is not always clear if a holdover proceeding does not tual right to use the subject prem- lease reserves a landlord the right ises on specified days at specified to re-enter. Moreover, questions of abrogate an owner’s common hours, was a mere licensee and, fact often exist as to whether the law right to oust a licensee. therefore, could not maintain a tenant was in default and, if so, did proceeding for unlawful entry and the landlord properly notice tenant commercial licensee is in default of detainer. See also, Best v. Samjo of same. Lastly, even if a landlord the license agreement. A licensor Realty Corp., 709 NYS2d 508 (1st manages to traverse the foregoing, may simply terminate the commer- Dept. 2000). a self-help eviction can always take cial license and, immediately there- a turn for the worse if the tenant after, evict the commercial licensee Pelt Case arrives during the process and by using self-help, i.e., changing This hotly contested issue was things escalate, turning a peace- the locks, so long as licensor is analyzed in 2013 in Pelt v. City of ful self-help eviction into a hostile mindful not to violate RPAPL 853. New York, 2013 WL 4647500 (EDNY situation. The reasoning behind this prop- 2013), albeit in the context of a resi- Even worse is the distinct possibil- osition was set forth more than a dential squatter. In Pelt, plaintiff ity that a landlord does everything century ago by the Court of Appeals lived with a New York City Hous- right and is still unsuccessful in in Napier v. Spielman, 196 NY 575 ing Authority (NYCHA) tenant in regaining possession of the space. (1909), affg., 127 AD 567. Therein, a NYCHA-owed building for many A tenant with a lease is a tenant who the Court of Appeals affirmed a judg- years. For reasons not relevant can call a police officer (who may not ment in favor of defendant-licensor here, the tenant vacated and sur- be well versed in the common-law and dismissed the complaint for tre- rendered the apartment in July, right to use self-help) and, with the ble damages for an alleged forcible 2010; however, plaintiff remained lease in hand, seek to be restored entry and detainer. Significantly, in in occupancy. As alleged by plaintiff, to possession.3 As one can readily the underlying opinion, the First on Aug. 19, 2010, NYCHA, with the see, a landlord’s use of self-help is Department held that an “action aid of the police, used self-help to riddled with uncertainty and one that for forcible entry and detainer will evict plaintiff and did not permit this author has rarely, if ever, seen not lie where the ousted occupier plaintiff to return. Thursday, September 1, 2016

Plaintiff commenced suit seeking Importantly, the Pelt court went possession in court. If the situation restoration and damages for being on to explain that the statutory right is right, a commercial licensor may ousted from the NYCHA apartment of an owner to commence a licens- use self-help to remove a commer- by NYCHA with the aid of the police. ee summary holdover proceeding cial licensee or interloper from their Plaintiff claimed that he occupied does not abrogate an owner’s com- property. In doing so, an owner has the apartment pursuant to a license mon law right to oust a licensee. the opportunity to quickly and granted to him by the tenant who The court opined that RPAPL 713, inexpensively regain possession of had previously surrendered and which governs proceedings where their premises without the need to vacated. The court did not give no landlord-tenant relationship resort to litigation. Of course, one any credit to plaintiff’s claim of a exists, including a licensee, is but should take caution to first under- license since he provided no proof an option for owners rather than stand the nature of the occupancy of same and plaintiff did not provide a requirement. To be clear, the and always refrain from using force, any proof that his purported license court stated that RPAPL 713 does fear, violence or unlawful means in could survive tenant’s surrender and not require an owner to commence exercising self-help. vacatur of the apartment. Regard- a proceeding and that self-help is •••••••••••••• •••••••••••••• less, the court held that plaintiff had still available: • no right to remain in the apartment, Contrary to plaintiff’s contention, 1. Sol De Ibiza, LLC v. Panjo Realty, 29 Misc.3d 72 (App Term 1st Dept. 2010). stating that plaintiff’s self-serving §713 does not obligate landlords 2. 1414 Holdings, LLC v. BMS-PSO, LLC, and conclusory allegation that he to provide notice to licensees pri- 116 AD3d 641 (1st Dept. 2014) (common was a licensee (as opposed to a or to eviction from a premises; law right to use self-help “can only be squatter or trespasser) was of no nor does §713 confer upon licens- exercised if the lease expressly reserves that right.”). help because: ees a constitutionally protected 3. Martinez v. Sixto Ulloa, 50 Misc.3d 45 Under New York law, it is well set- property interest in or legal right (App Term 2nd, 11th & 13th Jud Dist 2015). tled that a “licensee acquires no to that premises…Instead, §713 4. Self-help, although typically limited to possessory interest in property.” is part of an optional summary commercial occupants, when used peace- fully, may be used to evict a residential P&A Bros., Inc. v. City of New eviction scheme that “merely squatter and/or licensee (see, Tantaro v. York Dep’t of Parks & Recreation, permits a special proceeding as Common Ground Community Hous. Dev. 184 A.D.2d 267, 269, 585 N.Y.S.2d an additional means of effectuat- Fund, 2015 WL 4514959 (Sup. Ct. N.Y. Co. 335 ([1st Dept.] 1992)…; see also ing the removal of nontenants,” 2015) (“appellate authority…makes clear that the common-law remedy of peace- Gladsky v. Sessa, No. 06-CV-3134, such as licensees. P&A Bros., 184 ful self-help in evicting nontenants, who 2007 WL 2769494, at *8 (E.D.N.Y. A.D.2d at 268, 585 N.Y.S.2d 335 have not established that they are lawful Sept. 21, 2007) (“It has long (citing Bliss v. Johnson, 73 N.Y. occupants or permanent tenants, applies been the rule in New York that 529, 534 (1878)); see also Walls equally to residential and commercial landlords alike.”) However, an owner is a licensee, as opposed to a ten- v. Giulani, 916 F.Supp. 214, 219-20 cautioned that whether self-help can be ant…, cannot maintain an action (E.D.N.Y. 1996)…. Indeed, New used in residential matters depends on for wrongful ejection.’”)…Consis- York state courts have repeat- a variety of issues not addressed in this tent with this principle, New York edly clarified that §713 “does article. state and federal courts have rou- not replace an owner’s common- tinely held that “‘[w]hile it is true law right to oust an interloper that tenants…may be evicted only without legal process.” E.g., P&A though lawful procedure, others, Bros., 184 A.D.2d at 268, 585 such as licensees and squatters, N.Y.S.2d 335 (citing Bliss, 73 N.Y. who are covered by RPAPL 713 at 534); see also Gladsky, 2007 are not so protected.’” E.g., Pau- WL 2769494, at *8.4 lino v. Wright, 210 A.D.2d 171, 172, Thus, there can be no doubt that Reprinted with permission from the September 1, 2016 edition of the NEW YORK 620 N.Y.S.2d 363 ([1st Dept.] 1994) a commercial licensor has a viable LAW JOURNAL © 2016 ALM Media , LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382 (emphasis added). alternative to seeking a judgment of or [email protected]. # 070-08-16-50