Rocke v. 1041 Bushwick Ave. Assoc., Inc.

• Decision Date: 17 January 1991
• Court: New York Supreme Court — Appellate Division
• Parties: Betty ROCKE, Plaintiff-Respondent, v. 1041 BUSHWICK AVE. ASSOC., INC., et al., Defendants, and Rental & Management Associates, Inc., Defendant-Appellant.

Page 379

564 N.Y.S.2d 379

169 A.D.2d 525

Betty ROCKE, Plaintiff-Respondent, v. 1041 BUSHWICK AVE. ASSOC., INC., et al., Defendants, and Rental & Management Associates, Inc., Defendant-Appellant.

[And a third-party action.]

Supreme Court, Appellate Division,

First Department.

Jan. 17, 1991.

Before SULLIVAN, J.P., and ROSENBERGER, ELLERIN and ROSS, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, Appellate Term, First Department (Sandifer, J.P., and Miller, J.; Parness, J., dissenting), entered November 8, 1989, affirming a judgment of the Civil Court, New York County (Norman Ryp, J.), entered on June 1, 1988, awarding the plaintiff $28,297.58, plus interest and costs, after a jury trial, unanimously affirmed, without costs.

Plaintiff, after a fight with her ex-husband, left the apartment to visit her sister. While she was gone, the building's superintendent carried the plaintiff's belongings from the hallway where her ex-husband had placed them to the building's basement, and changed the apartment door lock. The record contains evidence sufficient to allow the jury to conclude that the building superintendent did so on the instruction of the building's manager, who was a friend of the plaintiff's ex-husband.

We reject the appellant managing agent's contention, raised for the first time on appeal, that the plaintiff had abandoned her tenancy. The record supports the trial court's award of treble damages pursuant to Real Property Actions and Proceedings Law § 853 (see Lyke v. Anderson, 147 A.D.2d 18, 541 N.Y.S.2d 817), but not an award of damages for intentional infliction of emotional distress, or of punitive damages, in addition to treble damages.

We have considered the appellant's remaining contentions, and find them to be without merit.