Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion:

Upon the foregoing cited papers, and after oral arguments on April 7, 2025, the Decision/Order on Respondent's cross-motion to dismiss the petition is GRANTED for the following reason(s):

On or about February 21, 2023, Petitioner and undertenant, Junsui LCC, LLC ("Petitioner"), allegedly entered into a sublease agreement with a nonparty, Trippy Town, Inc. ("Trippy Town"), sublessor and tenant, for the premises known as 65 Jay Street, Ground Floor, Brooklyn, NY 11201. On February 11, 2025, Petitioner filed an emergency Order to Show Cause for an order restoring Petitioner to possession of the subject premises, and for treble damages pursuant to RPAPL § 853, for an illegal lockout Petitioner claims occurred on February 4, 2025. Respondent and owner of the subject premises ("Respondent"), 65 Jayat Realty Corp., filed both an Answer and an Opposition and Memorandum of Law on February 24, 2025, then subsequently filed this cross-motion on March 4, 2025 (Mot. Seq. #1), seeking dismissal of the petition.

Respondent's motion to dismiss the petition argues that dismissal is warranted for several reasons. First, Respondent states that Petitioner fails to state a cause of action pursuant to CPLR [*2]§ 3211(a)(7). Specifically, Respondent argues that the pleadings are insufficient because Petitioner does not include the sublease or rental records as proof of its relationship with Trippy Town, nor are the papers affirmed by anyone with personal knowledge of the facts and circumstances alleged in the petition. Respondent avers that it properly exercised its right to self-help under the lease ("main lease") between it and the tenant of record, Trippy Town. Respondent further argues that the main lease provided for the remedy of self-help should the tenant fail to comply with the provisions therein.

Respondent continued that under the provisions of the main lease, its consent or permission to sublease the premises was required and because Trippy Town did not seek Respondent's consent as contemplated under the lease, the sublease should be deemed unenforceable as against Respondent. Respondent avers that based on the unenforceability of the sublease, Petitioner lacks standing to bring this proceeding, again warranting the dismissal of the underlying petition. Furthermore, Respondent argues that Trippy Town is an indispensable party to this action as it would be directly affected by any holding held in this proceeding. Respondent concludes by arguing that restoring Petitioner to the premises would be futile, as caselaw has consistently upheld the doctrine of futility where it is foreseeable that an owner/landlord could prevail in a summary proceeding.

In opposition, Petitioner argues that Respondent is misguided in its "legal conclusions about this case." Petitioner argues that the leased premises were never surrendered to Respondent, and that the premises were occupied since August 2021 (three years) with a lease renewal extending tenancy through February 2026. Petitioner argues that the lease between itself and Trippy Town was executed with Respondent's knowledge and consent, which was apparent when Respondent discontinued a non-payment proceeding against Trippy Town and served Petitioner a new rent demand in December 2024. Petitioner further argues that Respondent's exercise of self-help was unlawful as Petitioner did not relinquish its right to possession nor consent to the unlawful eviction. Petitioner states that irrespective of whether the lease between Respondent and Trippy Town expired or ran for a shorter lease period, "the petitioner was the lawful tenant of [the] space." Petitioner avers that though restoration back to possession of the premises may be futile, it is irrelevant to Petitioner's "right to treble damages as a result of the unlawful eviction " Furthermore, Petitioner concludes that Respondent's conduct of illegally locking Petitioner out of the premises is a violation of RPAPL § 853 and is compensable to Petitioner for all of its damages and lost profits.

On a motion to dismiss a complaint pursuant to CPLR § 3211(a)(7), the court must accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory. Leon v. Martinez, 84 NY2d 83, 87-88 (1994). "Moreover, the court may consider affidavits submitted by the plaintiff to remedy any defects in the complaint, and upon considering such an affidavit, the facts alleged therein must also be assumed to be true." Tcharnyi v. Mendez, 221 AD3d 930 (2nd Dept., 2023). "Whether [a] complaint will later survive a motion for summary judgment, or whether the plaintiff will ultimately be able to prove its claims, of course, plays no part in the determination of a prediscovery CPLR § 3211 motion to dismiss" Id. at 931. In ruling on a motion to dismiss, the court is not authorized to assess the [*3]merits of the complaint or any of its factual allegations, but only to determine if, assuming the truth of the facts alleged, the complaint states the elements of a legally cognizable cause of action. P.T. Bank Cent. Asia v. ABN AMRO Bank N.V., 301 AD2d 373 (1st Dept., 2003).

Respondent argues that Petitioner has failed to properly plead a cause of action pursuant to CPLR § 3211(a)(7). The Court disagrees. Petitioner commenced this case for restoration to possession and pursuant to RPAPL § 853 for treble damages, and it is unequivocal that these are cognizable legal theories. As stated above, whether Petitioner can ultimately prove its claims is irrelevant at this juncture, but contrary to Respondent's assertions, Petitioner's failure to attach the sublease or proof of monthly payments with the petition is not inimical to the case. It is also not detrimental to the case that the papers were affirmed by one without personal knowledge. See, 1081 Flatbush Ave., LLC v. Jadoo, 34 Misc 3d 136(A)(App. Term., 2nd, 11th & 13th Jud. Dists., 2011)([A] petition verified by an attorney is sufficient to satisfy RPAPL § 741).

The Court finds Respondent has not established entitlement to dismissal under CPLR § 3211(a)(7).

A landlord may peaceably re-enter commercial premises and regain possession pursuant to a right reserved in the lease if the tenant breaches its obligation to pay rent. Bozewicz v. Nash Metalware Co., 284 AD2d 288 (2nd Dept., 2001). Here, Respondent claims it properly exercised it self-help rights under the main lease but does not attach the main lease to its papers. Without more, this Court is left to speculate whether Respondent acted lawfully in re-entering and regaining possession of the premises, an act Respondent has not denied it engaged in.

Consequently, the Court finds Respondent has not demonstrated dismissal is warranted pursuant to its alleged entitlement to self-help under the main lease.

A summary proceeding to restore to possession can be maintained by "the person forcibly put out or kept out." RPAPL § 721(4). Standing to maintain an illegal lockout proceeding does not depend on the status of the person in possession, nor on the existence of a landlord-tenant relationship. Saccheri v. Cathedral Properties Corp., 184 Misc 2d 304 (App. Term., 2nd, 11th & 13th Jud. Dists., 2000). It is yet to be determined if Petitioner was unlawfully removed from the subject premises, and this action is where that determination is to be made. Petitioner seeks treble damages for the alleged illegal lockout and alleges that Respondent actively prohibited Petitioner's entry into the premises by placing a bar across the entrance and shutting off electricity while the premises was operating as a restaurant.

Considering the facts in the light most favorable to the nonmoving party, the Court finds Respondent has not established Petitioner's lack of standing to bring this action pursuant to RPAPL § 853 where the allegations are that Petitioner was peaceably in actual possession at the time of the alleged unlawful entry.

CPLR § 1001(a) provides, in relevant part, necessary parties include those "who ought to [*4]be parties if complete relief is to be accorded between the persons who are parties to the action or who might be inequitably affected by a judgment in the action shall be made plaintiffs or defendants." CPLR § 1001(b) continues, "[w]hen a person who should be joined under subdivision (a) has not been made a party and is subject to the jurisdiction of the court, the court shall order him summoned." Id.

Respondent has not demonstrated or cited any caselaw or statute in support of its claim that Trippy Town is an indispensable party in this illegal lockout action. If judgment is in favor of Petitioner, Petitioner may proceed with its treble damages claim and it is unclear how Trippy Town would be inequitably affected by the judgment. Conversely, if judgment is granted in favor of Defendant, thereby dismissing the petition, it is equally unclear how Trippy Town would be inequitably affected by the judgment. While there may be some terms or conditions in the main lease that necessitate that Trippy Town be made a party to this proceeding, the lease is not before the Court, and without more, the Court finds that Trippy Town is not an indispensable party in this action.

[I]n a summary proceeding to restore possession brought pursuant to RPAPL Article 7, the court does not have jurisdiction over a cause of action for damages, including damages pursuant to RPAPL § 853. Rostant v. Swersky, 79 AD3d 456 (1st Dept., 2020), citing, Kiryankova v. Brovkina, 2003 NY Misc. LEXIS 621, 2003 NY Slip Op 50920[U], *2-3 (2003); Matter of Bedford Gardens Co. v. Silberstein, 269 AD2d 445, 702 N.Y.S.2d 884 [2000]; A & E Tiebout Realty, LLC v. Johnson, 26 Misc 3d 131[A], 2010 NY Slip Op 50055[U], 907 N.Y.S.2d 98 [2010], affg for reasons stated at 23 Misc 3d 1112A[A], 2009 NY Slip Op 50715[U], 885 N.Y.S.2d 710 (2009)(emphasis added). RPAPL § 853 provides that "if a person is disseized, ejected, or put out of real property in a forcible or unlawful manner, or, after he has been put out, is held and kept out by force or by putting him in fear of personal violence or by unlawful means, he is entitled to recover treble damages in an action therefor against the wrong-doer."

Damages for wrongful eviction, including RPAPL § 853 treble damages, must be sought in a separate action in a court of competent jurisdiction. Id., citing, Saccheri v. Cathedral Props. Corp., 16 Misc 3d 111, 114, 842 NYS2d 676 (2007). Accordingly, the doctrine of res judicata is no bar to plaintiff's pursuit of that claim in the instant action (see, Mills v. Wharton, 161 Misc 2d 209, 211, 612 N.Y.S.2d 760 [1994], affd 164 Misc 2d 812, 629 NYS2d 627 [1995]; see also, Rodriguez v. 1414-1422 Ogden Ave. Realty Corp., 304 AD2d 400, 401, 758N.Y.S.2d 43 [2003] [claim-splitting doctrine "does not preclude the tenant from seeking damages in an action separate from that in which he had sought to be restored to possession"]). Id.

In this summary proceeding, the face of the petition seeks restoration to possession and treble damages. Respondent argues, and Petitioner seems to concede, it would be futile to return Petitioner to possession. Admittedly, the caselaw submitted with Petitioner's opposing papers found that restoration to possession will be futile even after that court found that the landlord illegally evicted the petitioner. Marasca Club & Rest., LLC v. Ghotra & Sons, LLC, Index No. LT50053-2021/QU. Pet. Exh. C.

Petitioner has more or less conceded the futility of being restored to possession and requests the court proceed with its claim for treble damages. Additionally, as noted above, [*5]damages for treble damages must be sought in a separate action in a court of competent jurisdiction, not in summary proceedings such as this one.

Based on the foregoing, the court finds that restoring Petitioner to possession will be futile and dismisses that part of the petition. The court also finds that the part of the petition seeking treble damages must be dismissed, without prejudice.

In the alternative, Respondent moves for leave to conduct discovery pursuant to CPLR § 408. This is denied as moot, considering the petition has been dismissed.

Accordingly, it is hereby

ORDERED, that Respondent's motion to dismiss is granted and the petition is dismissed, without prejudice; and it is further

ORDERED, that Respondent's motion seeking leave for discovery is denied as moot.

This constitutes the decision and order of the court.