Elwin v. Burnett
2024 NY Slip Op 34060(U)
| Civ. Ct. NYC, Queens Cty. | 2024Background
- Alisa Elwin filed an illegal lockout proceeding under RPAPL § 713(10) against Miguel Burnett, alleging she was unlawfully excluded from her apartment at 1887 Strauss Street, Brooklyn.
- Elwin claimed she began residing in the premises in 2011 under a lease with the then-owner, Michael McMayo, and continuously occupied the apartment, though she spent months away in Las Vegas caring for grandchildren.
- Upon McMayo’s death, Burnett (McMayo's son) assumed control of the premises; the locks were changed, preventing Elwin’s return.
- Burnett argued Elwin’s estranged husband and daughter executed a surrender agreement in exchange for $8,000, relinquishing all claims to the apartment.
- The core disputes were whether Elwin’s absence constituted abandonment and whether the surrender agreement was binding on her.
- The court credited Elwin’s physical and personal ties to the property, and found there was no authorization for third parties to surrender her interest.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Illegal Lockout | Elwin was lawfully in possession and locked out without consent. | Premises were surrendered; Elwin abandoned her rights. | Judgment for Elwin; lockout was illegal. |
| Abandonment | Absences excused by family obligations; belongings maintained residence. | Prolonged absence was abandonment. | Elwin did not abandon; absence excused. |
| Validity of Surrender Agreement | Did not authorize daughter/ex-husband to surrender rights. | Agreement covered all claimants, including Elwin. | Surrender not binding on Elwin; no authority. |
| Futility of Reinstating Possession | Requested possession be restored. | Reinstatement is futile due to alleged surrender/abandonment. | Futility argument rejected; possession ordered. |
Key Cases Cited
- Romanello v. Hirschfeld, 63 N.Y.2d 613 (N.Y. 1984) (Discussing the requirements for an illegal lockout proceeding)
- Sam & Mary Housing Corp. v. Jo/Sal Market Corp., 100 A.D.2d 901 (2d Dep’t 1984) (Burden of proving a surrender or abandonment)
- Reed v. Reed, 404 U.S. 71 (1971) (Equal Protection Clause prohibits transferring a woman’s property rights to her husband without her express permission)
- Wagman v. Smith, 161 A.D.2d 704 (2d Dep’t 1990) (Futility arguments generally disfavored in residential lockout proceedings)