Padilla v. Rodriguez

• Court: Appellate Terms of the Supreme Court of New York
• Decided: October 19, 2018
• Docket: 2018 NYSlipOp 51471(U)
• Status: Published

Opinion

Amalia Padilla, Petitioner-Appellant,

against

Maria Rodriguez, Respondent-Respondent.

Petitioner appeals from an order of the Civil Court of the City of New York, New York County (Jack Stoller, J.), entered on or about August 21, 2017, after a nonjury trial, which dismissed the petition in an illegal lockout proceeding (see RPAPL 713[10]).

Per Curiam.

Order (Jack Stoller, J.), entered on or about August 21, 2017, affirmed, without costs.

The petition in this illegal lockout proceeding (see RPAPL 713[10]), was properly dismissed after trial. Petitioner, the Section 8 tenant of an apartment located at 678 Academy Street, presented no evidence establishing that she had a possessory interest in the subject Fort Washington Avenue apartment (see Markun v Weckstein, 100 Misc 668 [App Term, 1st Dept 1917]; see also Viglietta v Lavoie, 33 Misc 3d 36 [App Term, 2nd Dept 2011]), and was a mere licensee of the tenant (see Rosenstiel v Rosenstiel, 20 AD2d 71, 76 [1963]). Since a licensee does not have "possession," she cannot maintain an unlawful entry and detainer proceeding (RPAPL 713[10]; see Napier v Spielmann, 196 NY 575 [1909], affg on op of Houghton, J. 127 App Div. 567 [1908]; P & A Bros. v City of NY Dept. of Parks & Recreation, 184 AD2d 267 [1992]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: October 19, 2018