
    [22 NYS3d 787]
    Teodulo Martinez et al., Respondents, v Sixto Ulloa, Appellant.
    Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts,
    September 25, 2015
    
      APPEARANCES OF COUNSEL
    
      Sixto Ulloa, appellant pro se.
   OPINION OF THE COURT

Memorandum.

Ordered that, on the court’s own motion, the notice of appeal from the decision dated May 2, 2013 is deemed a premature notice of appeal from the final judgment entered January 12, 2015 (see CPLR 5520 [c]); and it is further ordered that the final judgment is modified by providing that the petition is dismissed; as so modified, the final judgment is affirmed, without costs.

In this unlawful entry and detainer summary proceeding (see RPAPL 713 [10]) commenced by tenants by order to show cause (see CCA 400 [1]) and supporting affidavit (deemed a petition), the Civil Court awarded tenants possession of the subject commercial premises and denied landlord’s “cross motion” for an award of possession and use and occupancy, based on its determination that it was not permissible for landlord to use self-help to regain possession thereof.

Contrary to the Civil Court’s determination, “it is well established that a landlord may, under certain circumstances, utilize self-help to regain possession of demised commercial premises” (Sol De Ibiza, LLC v Panjo Realty, Inc., 29 Misc 3d 72, 75 [App Term, 1st Dept 2010]; see Bozewicz v Nash Metalware Co., 284 AD2d 288 [2001]; Matter of 110-45 Queens Blvd. Garage v Park Briar Owners, 265 AD2d 415 [1999]; Matter of Jovana Spaghetti House v Heritage Co. of Massena, 189 AD2d 1041 [1993]; see also Matter of Ga Young Lee v Charl-Ho Park, 16 AD3d 986 [2005]; North Main St. Bagel Corp. v Duncan, 6 AD3d 590 [2004]; 2 Dolan, Rasch’s Landlord and Tenant—Summary Proceedings §§ 29:1, 29:11 [4th ed]). Here, the provisions of the lease reserved landlord’s right to reenter and regain possession of the premises upon a breach of a condition of the lease, provided that landlord serve a five-day notice to cure and a three-day notice of termination. Tenants’ pleadings fail to contain any allegations establishing that tenants were not in breach of a condition of the lease, that landlord had not complied with the lease provisions requiring notice, or that reentry by landlord was not accomplished peaceably (see Matter of 110-45 Queens Blvd. Garage v Park Briar Owners, 265 AD2d 415 [1999]; Sol De Ibiza, LLC v Panjo Realty, Inc., 29 Misc 3d 72 [2010]). Upon a review of all the papers submitted (see CPLR 409 [b]), we find that the petition must be dismissed based on these defects.

The branch of landlord’s “cross motion” seeking a judgment of possession, based on a claim that tenants had, after commencing the proceeding, restored themselves to possession, was properly denied. While RPAPL 743 provides for the assertion of a legal counterclaim in a summary proceeding, it does not allow a respondent to circumvent the requirements of RPAPL article 7 for the maintenance of a summary proceeding to obtain a judgment of possession (RPAPL 747; compare the majority and dissenting opinions in Mazzella v Sarvis, 67 NYS2d 283 [App Term, 1st Dept 1946], revd on other grounds 272 App Div 381 [1947]; see also Ric-Mar Equity Ventures v Murrell, 184 Misc 2d 298 [App Term, 2d Dept, 2d & 11th Jud Dists 2000]). When tenants resumed possession, they did so, if landlord’s position is accepted, as squatters, the lease having been terminated, and no 10-day notice was served as is required to obtain a final judgment pursuant to RPAPL 713 (3) (cf. Matter of Sweet v Sanella, 46 AD2d 688 [1974]). Moreover, landlord has not pleaded the elements of a civil court ejectment action (see CCA 203 [j]).

While the landlord may now be faced with additional litigation, this was brought about by landlord’s resort to self-help. The court was available for landlord to seek an award of possession, but, having chosen to act on its own, landlord cannot now complain of being denied the opportunity to short-circuit the procedural requirements of a summary proceeding, by way of counterclaim.

We do not in any way wish to diminish or deny landlords the right to utilize self-help. Nor is the majority opinion meant as approval for tenants’ conduct or that of the police in this particular instance. We note, however, that it would not be unusual or improper in appropriate circumstances for a tenant locked out of a premises to seek assistance from the police. There is an element of uncertainty associated with resort to self-help, and, in our opinion, we cannot simply disregard the pleading requirements of the statute in an effort to restore landlord to possession.

For these reasons, we sustain the denial of the branch of landlord’s “cross motion” seeking an award of possession. The denial of the branch of landlord’s “cross motion” seeking use and occupancy is likewise sustained, as, under the circumstances presented, landlord’s claims for possession and use and occupancy should be heard together. We express no view as to the ultimate status of the parties and pass upon no other issue raised on appeal.

Accordingly, the final judgment is modified by providing that the petition is dismissed.

Weston, J.R

(dissenting in part and voting to reverse the final judgment in the following memorandum). While I agree that tenants’ petition should have been dismissed, I disagree with the majority’s conclusion that landlord is not entitled to a judgment of possession on its counterclaim. In my opinion, there is no authority to support the proposition that a party cannot be awarded possession on a counterclaim during a summary proceeding.

After tenants were issued repeated violations, which exposed landlord to financial penalties, landlord, in accordance with the lease, served tenants with a notice to cure. When tenants failed to cure, a notice of termination was served, and landlord subsequently changed the locks on the door. Tenants acknowledged timely receipt of the notice of termination and admittedly knew of landlord’s intent to change the locks. Nevertheless, tenants maintain that landlord had no authority to act. I strongly disagree.

While the instant proceeding was pending, and without waiting for a decision, tenants had the temerity to call the police to regain entry to the premises. Over a two-hour period, landlord was threatened with arrest by the police if he did not reopen the premises to tenants. Tenants do not dispute these facts, and the majority fails to reconcile their decision with the fact that when this proceeding was commenced, landlord had already regained lawful possession.

The purpose of a summary proceeding is to do speedy justice for all and eliminate great delay and expense. Summary proceedings quickly resolve certain finite issues, and while counterclaims are limited, they are not prohibited (see All 4 Sports & Fitness, Inc. v Hamilton, Kane, Martin Enters., Inc., 22 AD3d 512, 514 [2005]). “The . . . exception is a counterclaim so ‘inextricably intertwined’ with petitioner’s claim that joint resolution of the claims will ‘expedite disposition of the entire controversy, avoid multiplicity of other lawsuits between the parties to accomplish the same result, do speedy justice for all and eliminate greater delay and expense’ ” (Ring v Arts Intl., Inc., 7 Misc 3d 869, 880 [Civ Ct, NY County 2004], quoting Haskell v Surita, 109 Misc 2d 409, 414 [Civ Ct, NY County 1981]). “Where the issues raised in the counterclaim bear directly upon the landlord’s right to possession, they are said to be intertwined in the summary proceeding issues and should be disposed of in one proceeding” (Sutton Fifty-Six Co. v Garrison, 93 AD2d 720, 722 [1983], citing Great Park Corp. v Goldberger, 41 Misc 2d 988, 990 [Civ Ct, NY County 1964]).

Where a landlord has reserved its common-law right to peaceably reenter the commercial premises upon breach of a condition in the lease, the law permits the reentry if it can be effected peaceably (Matter of 110-45 Queens Blvd. Garage v Park Briar Owners, 265 AD2d 415 [1999]). Here, landlord lawfully reclaimed the premises, which is acknowledged by the majority, and landlord’s “cross motion” was unopposed. Indeed, the exhibits annexed to the order to show cause support landlord’s argument that the self-help eviction was peaceably effected. Tenants’ only argument is the misguided presumption that in a commercial tenancy, a landlord is not permitted to avail himself of self-help. Under these circumstances, the determination of who has the right of possession is so intertwined that joint resolution of the issue is exactly what is contemplated by RPAPL 747. Pursuant to RPAPL 747, the court shall direct that a final judgment be entered determining the rights of the parties.

Nevertheless, the majority suggests that tenants became squatters when they illegally reentered the commercial premises and, as such, were entitled to notice. By suggesting that tenants were entitled to notice and attempting to frame the necessity for an alternative proceeding, the majority is not only compounding the error of the lower court, but is sanctioning tenants’ improper conduct. The majority decision creates a chilling effect on any landlord using self-help by rendering the option ineffective. Here, landlord had the authority to use self-help, but the lower court improperly ruled that landlord could not, and restored these commercial tenants to possession. In my opinion, landlord’s authority to use self-help had restored him to possession, making it unlawful for tenants to call the police in order to gain entry to premises to which they had no right. To suggest that tenants are entitled to notice is to reward them for their unlawful conduct. I, unlike the majority, refuse to sanction such conduct.

Accordingly, I would reverse the final judgment, dismiss tenants’ proceeding, award a judgment of possession to landlord, and remit the matter to the Civil Court for a determination of the amount of use and occupancy to be awarded landlord.

Aliotta and Elliot, JJ., concur; Weston, J.P., dissents in part in a separate memorandum. 
      
       Tenants commenced this summary proceeding by order to show cause in lieu of a notice of petition and supporting affidavit (deemed a petition) seeking to be restored to possession pursuant to RPAPL 713 (10). Landlord submitted a “cross motion” for summary judgment, which is deemed an answer with counterclaims for possession and for use and occupancy.
     