Respondent 508 Columbus Properties appeals from an order of the Civil Court, New York County, dated February 17, 2004 (Maria Milin, J.) which denied its motion for summary judgment dismissing the petition and granted petitioner's cross motion for summary judgment restoring him to possession in a special proceeding brought pursuant to RPAPL 713(10).

PER CURIAM:

Order dated February 17, 2004 (Maria Milin, J.) affirmed, with $10 costs.

We sustain the order restoring petitioner to the stabilized apartment premises, since the extensive record before us establishes that petitioner was at least in "constructive possession" (RPAPL 713[10]) of the apartment at the time of the lockout and, contrary to the respondent owner's claim, had not "abandoned" any leasehold or possessory interest that he may have had in the apartment. Significantly, the record shows that immediately prior to the lockout petitioner tendered and respondent accepted at least two rent checks and that respondent was well aware of petitioner's stated interest in a renewal lease in his name. Even assuming for purposes of this appeal that petitioner's wife — who died shortly before the lockout — was the sole record tenant of the apartment, that would provide no basis to deny restoration to petitioner since "the [*2]existence of a landlord and tenant relationship is not a sine qua non to the maintenance of a forcible entry and detainer summary proceeding under RPAPL 713[10]" (Dixon v Grunberg, 2004 NY Slip Op 50943[U] [App Term, 1st Dept]).

In affirming the order of restoration, we express no view as to petitioner's ultimate tenancy status.

This constitutes the decision and order of the Court.
Decision Date: July 26, 2005