2024 NY Slip Op 50995(U)
New York City Court2024Background
- Daniele Calkins moved into Daniel Johnson's Olean, NY residence in early 2024, without a lease and without paying rent, staying with her two children until an argument in April 2024.
- The relationship (romantic or otherwise) ended by April 2024, and Calkins intermittently occupied the premises, with her belongings remaining there.
- Johnson served a 30-day notice to quit in May 2024 and initiated a holdover eviction, which Calkins successfully moved to dismiss in July 2024 due to a defective service.
- After the dismissal, Johnson changed the locks on July 12, 2024, preventing Calkins from accessing the premises.
- Calkins filed an Order to Show Cause seeking restoration to the property, civil penalties, and criminal referral due to the alleged illegal lockout, citing RPAPL §§ 713(10), 768, and 853.
Issues
| Issue | Calkins's Argument | Johnson's Argument | Held |
|---|---|---|---|
| Whether Calkins had a possessory right as a tenant or licensee | She was illegally locked out and entitled to restoration under RPAPL §713(10) | No landlord-tenant relationship; at most, she was a licensee | Calkins was a licensee, not a tenant; no restoration right |
| Applicability of RPAPL §768 to licensees seeking restoration | RPAPL §768 and HSTPA entitle her to restoration as a lawful occupant | RPAPL §768 does not create possessory rights or restoration remedy for licensees | RPAPL §768 does not provide restoration to licensees without possessory interest |
| Private right to civil penalties or criminal referral under RPAPL §768 | Entitled to civil penalties and criminal referral under RPAPL §768 | Civil penalties not enforceable by private litigant | Civil penalties/criminal referral not available to private parties in this context |
| Remedy under RPAPL §853 for forcible ejection | Lockout entitles her to treble damages as an unlawfully ejected occupant | Calkins not in actual possession, so not eligible | Licensees not entitled to protections or treble damages under RPAPL §853 |
Key Cases Cited
- Rosenstiel v. Rosenstiel, 20 AD2d 71 (1st Dept. 1963) (defines a licensee as someone with a revocable right to occupancy, not a possessory interest)
- Felli v. Catholic Charities of Steuben County, 108 N.Y.S.3d 624 (4th Dept. 2019) (licensees lack a possessory interest sufficient for deprivation of property claims)
- Halaby v. Halaby, 44 AD2d 495 (4th Dept. 1974) (licensee status in domestic relationships)
- Coppa v. LaSpina, 41 AD3d 756 (2d Dept. 2007) (licensees not entitled to possessory relief)
- Hood v. Koziej, 140 AD3d 563 (1st Dept. 2016) (discretionary nature of treble damages for unlawful ejection)
- Tantaro v. Common Ground Community Housing, 147 AD3d 684 (1st Dept. 2017) (no RPAPL §853 claim where not in actual possession)