Respondents Porto Resources, LLC and Joseph Porto appeal from an order of the Civil Court of the City of New York, New York County (Arthur F. Engoron, J.), dated November 24, 2010, which granted petitioners' motion to be restored to possession and directed a hearing to determine petitioners' entitlement to damages pursuant to RPAPL 853.
Pied-A-Terre Networks Corp. v Porto Resources, LLC
Decided on September 28, 2011
Appellate Term, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.
PRESENT: Hunter, Jr., J.P., Schoenfeld, Torres, JJ
Order (Arthur F. Engoron, J.), dated November 24, 2010, reversed, with $10 costs, and petition dismissed, without prejudice to petitioners' right, if so advised, to commence an action seeking damages for an alleged wrongful eviction in a proper forum.
Even assuming, without deciding, that petitioners were unlawfully evicted as alleged in the petition, "restoring petitioner[s] to possession would be futile, because a summary proceeding brought by respondents would result in petitioner[s'] certain eviction" (Soukouna v 365 Canal Corp., 48 AD3d 359 ) from commercial premises regarding which petitioners have asserted no enforceable leasehold. The court lacks jurisdiction over that branch of the RPAPL article 7 restoration petition which sought damages, including treble damages pursuant to RPAPL 853 (see Rostant v Swersky, 79 AD3d 456 ; Eze v Spring Creek Gardens, 85 AD3d 1102 ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: September 28, 2011
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