CLINKSCALE v. SAMPSON (2008)

In an action, inter alia, to recover damages for wrongful eviction, the plaintiff appeals from an order of the Supreme Court, Kings County (Ruchelsman, J.), dated March 9, 2007, which denied her motion pursuant to RPAPL 853 for treble damages.

ORDERED that the order is reversed, on the facts and in the exercise of discretion, with costs, the motion is granted, and the matter is remitted to the Supreme Court, Kings County, for entry of an appropriate judgment on treble damages in the principal sum of $582,000.

 Although the awarding of treble damages pursuant to RPAPL 853 is discretionary (see Lyke v. Anderson, 147 A.D.2d 18, 28, 541 N.Y.S.2d 817), the trial court improvidently exercised its discretion in failing to award treble damages to the plaintiff in this case.   The defendants' unlawful eviction of the plaintiff was not unintentional.   The self-help measures undertaken by the defendants, including the shutting off of the plaintiff's utilities in the middle of February, the padlocking of the entrance of the building, and the ultimate subdivision of her former apartment all effectuated an unlawful eviction warranting the award of treble damages (see Moran v. Orth, 36 A.D.3d 771, 773, 828 N.Y.S.2d 516;  O'Hara v. Bishop, 256 A.D.2d 983, 682 N.Y.S.2d 291;  Rocke v. 1041 Bushwick Ave. Assoc., Inc., 169 A.D.2d 525, 564 N.Y.S.2d 379;  Lyke v. Anderson, 147 A.D.2d at 31, 541 N.Y.S.2d 817).