Martinez v. Ngalam

Ercia Martinez, Petitioner-Tenant-Appellant, against Tita S. Ngalam, Respondent-Landlord-Respondent. Petitioner-tenant appeals from an order of the Civil Court of the City of New York, Bronx County (Enedina Pilar Sanchez, J.), entered on or about January 4, 2017, after a nonjury trial, which dismissed the petition seeking restoration to the premises in a special proceeding brought pursuant to RPAPL § 713(10). Per Curiam. Order (Enedina Pilar Sanchez, J.), entered on or about January 4, 2017, affirmed, without costs. A forcible entry and detainer proceeding does not lie in the circumstances here present, since respondent-landlord entered and remained in possession of the commercial premises, not by "force or unlawful means" (RPAPL 713[10]), but pursuant to a lawful (stipulated) final judgment of possession and a duly issued warrant of eviction entered in a nonpayment proceeding between the parties, and petitioner-tenant's applications to vacate that judgment were denied (see Ngalam v Martinez, 53 Misc 3d 155[A], 2016 NY Slip Op 51761[U] [App Term, 1st Dept 2016]). The valid Civil Court judgment awarding possession to landlord is a "complete defense" to tenant's claim that she was wrongfully evicted (Dinolfi v Berkeley Assoc. Co., 98 AD2d 644, 644 [1983]; see Campbell v Maslin, 91 AD2d 559 [1982], affd 59 NY2d 722 [1983]). THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. I concur I concur I concur Decision Date: October 15, 2018