KESOGLIDES v. MARINE TERRACE ASSOCIATES (2021)

ORDERED that the order is affirmed, without costs.

Petitioner was evicted from the subject Section 8 apartment in June of 2012 pursuant to a final judgment of possession dated October 31, 2011. In August of 2012, the apartment was re-let to respondent Margareth Arce. This court reversed the final judgment by decision and order dated August 18, 2014 (Marine Terrace Assoc. v Kesoglides, 44 Misc 3d 141[A], 2014 NY Slip Op 51303[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]). After petitioner's motion for restitution in the prior summary proceeding had been denied without prejudice by the Civil Court,¹ petitioner commenced this unlawful entry and detainer proceeding (see RPAPL 713 [10]) seeking to be restored to possession. After a great deal of motion practice, the Civil Court, by order dated October 13, 2017, in effect, dismissed the petition and denied as moot two pending motions (one of which was denominated a “cross motion”) brought by petitioner.

An RPAPL 713 (10) proceeding is not the equivalent of an ejectment action and may be maintained only when “[t]he person in possession has entered the property or remains in possession by force or unlawful means.” The record demonstrates, and petitioner does not dispute, that Arce was in possession of the apartment at the commencement of this proceeding pursuant to a Section 8 lease which had been executed and went into effect two months after petitioner had been evicted and two years before the final judgment, pursuant to which petitioner had been evicted, had been reversed. In these circumstances, “the person in possession” did not enter the property by unlawful means, nor can it be said that she remained in possession by unlawful means at the time this proceeding was commenced. Thus, there is no basis for this summary proceeding.

Accordingly, the order is affirmed.

FOOTNOTES

1.   We note that “[r]estitution upon motion is discretionary” (Golde Clothes Shops, Inc. v Loew's Buffalo Theatres, Inc., 236 NY 465, 472 [1923]) and that petitioner did not appeal the Civil Court's denial of his motion for restitution.

ALIOTTA, P.J., WESTON and TOUSSAINT, JJ., concur.