Can a landlord re-take premises without first getting a warrant?

Real Estate Weekly, July 14, 1999 by Richard Claman

Thus, in Friends of Yelverton, Inc. v. 163rd Street Improvement Council, 135 Misc.2d 275, 514 N.Y.S.2d 841 (Civ. Ct. Bronx Co. 1986), the Court held that it "need not" order repossession; and on the facts, declined to do so. There, the City had leased - or at a minimum, licensed - certain space to a day-care center. The original agreement was for one semester; the school in fact operated for a couple of years. Over a summer, the City changed the locks and made the space available to another tenant. The Court severely criticized the City's behavior, but nevertheless denied a remedy of repossession, since the center's right of occupancy had already expired, and repossession would be "futile":

"Holding the City acted illegally does not mean it must restore the premises to Yelverton. (See Yates v. Kaplan, [75 Misc.2d259, 347 N.Y.S.2d 543 (Civ. Ct. N.Y. Co. 1973)] and Bressler v. Amsterdam Operating Corp., 194 Misc. 76, 86 N.Y.S.2d 250 (Mun. Ct., New York 1948) which hold that a court need not order a wrongfully evicted party back to possession where the return would be futile.

Ignoring the charges of illegality, at best Yelverton is a licensee whose alleged written right to use the premises has expired and whatever holdover rights it might have enjoyed have been terminated. It makes no sense to restore Yelverton to possession only to order its eviction a month or so hence.

The Yelverton analysis was adopted by the Second Department in Wagman v. Smith, 161 A.D.2d 704, 555 N. Y.S.2d 839 (2d Dep't 1990). There, the new owner of a foreclosed property resorted to the common law remedy of self-help to remove the former owner. This Court, citing approvingly to Yelverton, affirmed the dismissal of the former owner's petition seeking re-possession, explaining:

"The Supreme Court properly dismissed the petition. The respondent could have been better advised to have employed the statutory remedy of a writ of assistance pursuant to RPAPL 221 rather than resorting to the common law remedy of self-help. Nevertheless, there is no need to restore the petitioner to possession, as the respondent would then be entitled to a writ of assistance and possession under RPAPL 221 (see Friends of Yelverton v. 163rd St. Improvement Council, 135 Misc.2d 275, 514 N.Y.S.2d 841; Yates v. Kaplan, 75 Misc.2d 259, 347 N.Y.S.2d 543). See also, e.g., Colon v. N.Y.C. Department of Housing Preservation and Development, 11/23/94 NYLJ 28 (col. 6) (Civ. Ct. Kings Co.); Frances v. Reid, 7/17/96 N.Y.L.J. 26 (col. 5) (County Ct. Westchester Co.); and Padilla v. Padilla, 164 Misc.2d 740, 626 N.Y.S.2d 656 (Civ. Ct. Bronx Co. 1995).

An Appellate Term panel in the Second Department, however, in Park Briar, held that these recent cases should all be ignored, in favor of certain turn-of-the-century precedents not involving leases, which that Court read as requiring re-possession as an automatic remedy.

The four older cases relied upon by the Appellate Term for a contrary role appear patently distinguishable: in particular, none of them involved a lease. In none of those cases were the parties in a landlord-tenant relationship with each other. (See Iron Mountain and Helena Railroad v. Johnson, 119 U.S. 608 (1887); Cain v. Flood, 14 N.Y.S. 776 (N.Y. City Common Pleas 1891), aff'd 138 N. Y. 639 (1893); Town of Oyster Bay v. Jacob, 109 App. Div. 613 (2d Dep't 1905); and Rzepecka v. Urbanowski, 114 Misc. 30 (Sup. Ct. Erie Equity Term 1920).