72-06 Austin Realty Corp. v. Cano Ventures Corp.

• Court: Appellate Terms of the Supreme Court of New York
• Decided: June 15, 2018
• Docket: 2018 NYSlipOp 50944(U)
• Status: Published

Opinion

72-06 Austin Realty Corp., Respondent,

against

Cano Ventures Corp., Doing Business as Twist & Smash, Appellant.

Blackman & Melville, P.C. (Nigel E. Blackman of counsel), for appellant. 72-06 Austin Realty Corp., respondent pro se (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Queens County (Donna Marie Golia, J.), entered September 16, 2016. The order, insofar as appealed from as limited by the brief, denied the branch of tenant's motion seeking to be restored to possession in a nonpayment summary proceeding.

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

In this commercial nonpayment proceeding, a final judgment was entered on March 18, 2015 awarding landlord possession and the sum of $55,784. Tenant was evicted from the premises on June 3, 2016. Thereafter, tenant moved to be restored to possession on the ground that it had filed a petition in bankruptcy and landlord had violated the bankruptcy court's automatic stay. The Civil Court denied the motion.

Even assuming, without deciding, that tenant was unlawfully evicted in violation of the automatic stay provisions of the United States Bankruptcy Code (see 11 USC 362 [a] [1]), restoring tenant to possession would be futile since, under the circumstances, tenant, whose lease has expired, could be immediately re-evicted (see Soukouna v 365 Canal Corp., 48 AD3d 359 [2008]). We pass on no other issue.

Accordingly, the order, insofar as appealed from, is affirmed.

PESCE, P.J., WESTON and SIEGAL, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: June 15, 2018