Garanin v. Bykhovsky

Opinion

Garanin v Bykhovsky

2026 NY Slip Op 05166

September 2, 2026

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This decision is uncorrected and subject to revision before publication in the Official Reports.

Vsevolod Sergeevich Garanin, appellant,

v

Olga Bykhovsky, etc., et al., respondents.

Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on September 2, 2026

2024-12551, (Index No. 100001/21)

Colleen D. Duffy, J.P.

Linda Christopher

Barry E. Warhit

Elena Goldberg Velazquez, JJ.

Gallet Dreyer & Berkey, New York, NY (David L. Berkey of counsel), for appellant.

[*1]

DECISION & ORDER

In an action, inter alia, to recover damages for wrongful eviction pursuant to RPAPL 853, the plaintiff appeals from an order of the Supreme Court, Richmond County (Catherine M. DiDomenico, J.), dated November 8, 2024. The order, insofar as appealed from, granted that branch of the defendants' motion which was for summary judgment dismissing the cause of action to recover damages for wrongful eviction pursuant to RPAPL 853.

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

The plaintiff commenced this action against, among others, the defendant Eirena Bykhovsky, his former romantic partner and the mother of his children, inter alia, to recover damages for wrongful eviction pursuant to RPAPL 853. The plaintiff alleged, among other things, that Eirena Bykhovsky prevented him by force from entering the main part of their jointly owned home. The defendants moved, inter alia, for summary judgment dismissing the cause of action to recover damages for wrongful eviction pursuant to RPAPL 853. The plaintiff opposed the defendants' motion. In an order dated November 8, 2024, the Supreme Court, among other things, granted that branch of the defendants' motion. The plaintiff appeals.

RPAPL 853 provides that "[i]f a person is disseized, ejected, or put out of real property in a forcible or unlawful manner, or, after he [or she] 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." "This statute is directed at unlawful evictions of tenants or other lawful occupants of property who have been in actual physical possession" (Golonka v Plaza at Latham, 270 AD2d 667, 670 [internal quotation marks omitted]). Thus, a claim pursuant to RPAPL 853 "is only available to one evicted from property of which he or she was in actual possession" (Weiss v Bretton Woods Condominium II, 203 AD3d 1100, 1102 [internal quotation marks omitted]; see Gold v Schuster, 264 AD2d 547, 550).

Here, the defendants established, prima facie, that the plaintiff did not actually possess, occupy, or attempt to actually possess or occupy the main part of the home during the relevant time period (see Weiss v Bretton Woods Condominium II, 203 AD3d at 1102; Golonka v Plaza at Latham, 270 AD2d at 670). The defendants' submissions demonstrated that the plaintiff voluntarily moved into a "side unit" of the home and that he thereafter came to the main part of the home to see the children, not to possess or occupy that part of the home. In opposition to the [*2]defendants' prima facie showing, the plaintiff failed to raise a triable issue of fact.

Accordingly, the Supreme Court properly granted that branch of the defendants' motion which was for summary judgment dismissing the cause of action to recover damages for wrongful eviction pursuant to RPAPL 853.

In light of our determination, we need not reach the plaintiff's remaining contentions.

DUFFY, J.P., CHRISTOPHER, WARHIT and GOLDBERG VELAZQUEZ, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court