SOUKOUNA v. 365 CANAL CORP (2008)

Order of the Appellate Term of the Supreme Court of the State of New York, First Department, entered March 31, 2006, which modified a judgment of the Civil Court, New York County (Saliann Scarpulla, J.), entered June 7, 2004, restoring petitioner to possession of leased premises and awarding him money damages of $563.29, to the extent of denying petitioner's motion for restoration of possession, unanimously affirmed, without costs.

While Real Property Law § 231(1) and Real Property Actions and Proceedings Law § 711(5) contemplate court action by landlords seeking to recover premises used by lessees for illegal purposes, restoring petitioner to possession would be futile, because a summary proceeding brought by respondent would result in petitioner's certain eviction (see Matter of 110-45 Queens Blvd. Garage v. Park Briar Owners, 265 A.D.2d 415, 416, 696 N.Y.S.2d 490 [1999];  Bressler v. Amsterdam Operating Corp., 194 Misc. 76, 78-79, 86 N.Y.S.2d 250 [1949] ).   Contrary to petitioner's contention, the evidence before the Civil Court amply supports the finding that he was selling counterfeit goods from his booth at respondent's flea market.