Martinez v. Ngalam

Appellate Terms of the Supreme Court of New York

Martinez v. Ngalam

CourtAppellate Terms of the Supreme Court of New York

DecidedOctober 15, 2018

Docket2018 NYSlipOp 51437(U)

StatusPublished

This text of Martinez v. Ngalam (Martinez v. Ngalam) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Martinez v. Ngalam, (N.Y. Ct. App. 2018).

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Opinion

Ercia Martinez, Petitioner-Tenant-Appellant,

against

Tita S. Ngalam, Respondent-Landlord-Respondent.

Petitioner-tenant appeals from an order of the Civil Court of the City of New York, Bronx County (Enedina Pilar Sanchez, J.), entered on or about January 4, 2017, after a nonjury trial, which dismissed the petition seeking restoration to the premises in a special proceeding brought pursuant to RPAPL § 713(10).

Per Curiam.

Order (Enedina Pilar Sanchez, J.), entered on or about January 4, 2017, affirmed, without costs.

A forcible entry and detainer proceeding does not lie in the circumstances here present, since respondent-landlord entered and remained in possession of the commercial premises, not by "force or unlawful means" (RPAPL 713[10]), but pursuant to a lawful (stipulated) final judgment of possession and a duly issued warrant of eviction entered in a nonpayment proceeding between the parties, and petitioner-tenant's applications to vacate that judgment were denied (see Ngalam v Martinez, 53 Misc 3d 155[A], 2016 NY Slip Op 51761[U] [App Term, 1st Dept 2016]). The valid Civil Court judgment awarding possession to landlord is a "complete defense" to tenant's claim that she was wrongfully evicted (Dinolfi v Berkeley Assoc. Co., 98 AD2d 644, 644 [1983]; see Campbell v Maslin, 91 AD2d 559 [1982], affd 59 NY2d 722 [1983]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: October 15, 2018

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Ercia Martinez, Petitioner-Tenant-Appellant,

against

Tita S. Ngalam, Respondent-Landlord-Respondent.

Petitioner-tenant appeals from an order of the Civil Court of the City of New York, Bronx County (Enedina Pilar Sanchez, J.), entered on or about January 4, 2017, after a nonjury trial, which dismissed the petition seeking restoration to the premises in a special proceeding brought pursuant to RPAPL § 713(10).

Per Curiam.

Order (Enedina Pilar Sanchez, J.), entered on or about January 4, 2017, affirmed, without costs.

A forcible entry and detainer proceeding does not lie in the circumstances here present, since respondent-landlord entered and remained in possession of the commercial premises, not by "force or unlawful means" (RPAPL 713[10]), but pursuant to a lawful (stipulated) final judgment of possession and a duly issued warrant of eviction entered in a nonpayment proceeding between the parties, and petitioner-tenant's applications to vacate that judgment were denied (see Ngalam v Martinez, 53 Misc 3d 155[A], 2016 NY Slip Op 51761[U] [App Term, 1st Dept 2016]). The valid Civil Court judgment awarding possession to landlord is a "complete defense" to tenant's claim that she was wrongfully evicted (Dinolfi v Berkeley Assoc. Co., 98 AD2d 644, 644 [1983]; see Campbell v Maslin, 91 AD2d 559 [1982], affd 59 NY2d 722 [1983]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: October 15, 2018

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Martinez v. Ngalam, Counsel Stack Legal Research, https://law.counselstack.com/opinion/martinez-v-ngalam-nyappterm-2018.

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