Landlord appeals from an order of the Civil Court, New York County (Jeffrey K. Oing, J.), entered on or about July 16, 2004, after a hearing, which restored tenant to the subject premises.

PER CURIAM:

Order (Jeffrey K. Oing, J.), entered on or about July 16, 2004, affirmed, with $10 costs.
Giving due deference to the trial court's findings of fact and credibility (see Claridge Gardens v Menotti, 160 AD2d 554 [1990]), we find ample support for the court's conclusion that landlord failed to satisfy its burden of proving tenant's surrender of the commercial lease in response to tenant's prima facie showing of an illegal lockout (see Sam & Mary Housing Corp. v Jo/Sal Market Corp., 121 Misc 2d 434 [1983], mod on other grounds 100 AD2d 901 [1984], affd 64 NY2d 1107 [1985]). Thus, tenant was properly restored to possession of the premises (see Wasserman v Ewing, 270 AD2d 427 [2000]). We note that the surrender agreement relied upon by landlord was purportedly executed on behalf of tenant by a nonparty to the original lease who failed to testify at trial despite numerous requests by the court to secure his attendance. We have considered landlord's remaining arguments and find them unavailing.

This constitutes the decision and order of the court. [*2]
Decision Date: September 13, 2006