Respondent Cathedral Parkway Towers appeals from an order of the Civil Court of the City of New York, New York County (David B. Cohen, J.), dated January 23, 2007, which granted petitioner's motion to be restored to possession.

Per Curiam.

Order (David B. Cohen, J.), dated January 23, 2007, reversed, without costs, and petitioner's motion for restoration denied.

Joanne Lewis, the tenant of record of apartment 10H in the building premises here at issue, applied for a larger subsidized apartment in the building because of the size and composition of her family. Upon the grant of her application and her family's relocation to the larger apartment, respondent-landlord reentered apartment 10H, changed the locks and began renovations. On these facts, we conclude that there was a surrender by operation of law of apartment 10H. Where a tenant abandons possession, indicating an interest to yield his or her interest in the subject premises, and the landlord utilizes the premises in a manner inconsistent with the landlord-tenant relationship, a surrender will be inferred (see Riverside Research Inst. v KMGA Inc., 68 NY2d 689, 691,692 [1985]; Bay Plaza Estates, Inc. v New York Univ., 257 AD2d 472 [1999]). Accordingly, the motion of petitioner, the son of Joanne Lewis, to be restored to apartment 10H should have been denied. By virtue of the tenant's surrender of her tenancy, petitioner no longer had any occupancy rights to apartment 10H because his licensor was "no longer entitled to possession of the property" (RPAPL § 713[7]; Washington v Palanzo, 192 Misc 2d 577 [2002]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: October 11, 2007