72 06 AUSTIN REALTY CORP v. CANO VENTURES CORP (2018)

Supreme Court, Appellate Term, New York.

72–06 AUSTIN REALTY CORP., Respondent, v. CANO VENTURES CORP., Doing Business as Twist & Smash, Appellant.

2016–2897 Q C

Decided: June 15, 2018

PRESENT: MICHAEL L. PESCE, P.J., MICHELLE WESTON, BERNICE D. SIEGAL, JJ.

Blackman & Melville, P.C. (Nigel E. Blackman of counsel), for appellant. 72–06 Austin Realty Corp., respondent pro se (no brief filed).

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

In this commercial nonpayment proceeding, a final judgment was entered on March 18, 2015 awarding landlord possession and the sum of $55,784. Tenant was evicted from the premises on June 3, 2016. Thereafter, tenant moved to be restored to possession on the ground that it had filed a petition in bankruptcy and landlord had violated the bankruptcy court's automatic stay. The Civil Court denied the motion.

Even assuming, without deciding, that tenant was unlawfully evicted in violation of the automatic stay provisions of the United States Bankruptcy Code (see 11 USC 362 [a] [1] ), restoring tenant to possession would be futile since, under the circumstances, tenant, whose lease has expired, could be immediately re-evicted (see Soukouna v. 365 Canal Corp., 48 AD3d 359 [2008] ). We pass on no other issue.

Accordingly, the order, insofar as appealed from, is affirmed.

PESCE, P.J., WESTON and SIEGAL, JJ., concur.

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