Sapp v. Propeller Company LLC
Decision Date | 09 March 2004 |
Docket Number | 3084. |
Citation | 772 N.Y.S.2d 515,5 A.D.3d 181,2004 NY Slip Op 01513 |
Parties | ANTHONY SAPP et al., Appellants, v. THE PROPELLER COMPANY LLC et al., Respondents. (And a Third-Party Action.) |
Court | New York Supreme Court — Appellate Division |
An actual eviction occurs when a landlord wrongfully ousts a tenant from physical possession of the leased premises (Barash v Pennsylvania Term. Real Estate Corp., 26 NY2d 77, 82-83 [1970]). Although plaintiff tenants demonstrated that, for some unspecified period following a fire, defendant landlords padlocked the building in which plaintiffs had leased premises, there are triable issues of fact as to whether the premises in question were usable at the time plaintiffs were locked out and whether defendants' action had a lawful basis.
This question is not resolved by the prior finding of the Civil Court in a holdover proceeding brought by defendant Propeller against another tenant of the same building, that the fire damage was insufficient to provide a reasonable basis for Propeller's decision to demolish or rebuild the building. Invocation of the doctrine of collateral estoppel is inappropriate because there was no identity of issue (see Schwartz v Public Adm'r of County of Bronx, 24 NY2d 65, 71 [1969]). Unlike the issue before the Civil Court, the question before the motion court was whether, in the weeks immediately following the fire, defendants had a lawful basis for denying plaintiffs unrestricted entry into the building.
We have considered plaintiffs' remaining contentions and find them unavailing.
To continue reading
Request your trial-
Universal Communications Network Inc. v. 229 West 28th Owner Llc
...v. Pennsylvania Term. Real Estate Corp., 26 N.Y.2d 77, 82, 308 N.Y.S.2d 649, 256 N.E.2d 707 [1970]; see also Sapp v. Propeller Co., 5 A.D.3d 181, 182, 772 N.Y.S.2d 515 [2004] ). In fact, plaintiff admits that it retained possession and continued to perform construction therein. For this rea......
-
Robert B. Jetter, M.D., PLLC v. 737 Park Ave. Acquisition LLC
...issue regarding whether Defendants after the first proceeding wrongfully ousted Plaintiffs from the Premises. See Sapp v Propeller Co. LLC, 5 A.D.3d 181, 182 (1st Dep't 2004) (stating an "actual eviction occurs when a landlord wrongfully ousts a tenant"); Scolamiero v Cincotta, 128 A.D.2d 2......
-
Trinity Ctr., LLC v. Wall St. Correspondents, Inc., 2004 NY Slip Op 51060(U) (NY 8/9/2004)
...premises, there has been no actual eviction. Barash v. Pennsylvania Terminal Real Estate Corp, 26 N.Y.2d 77 (1970); Sapp v. Propeller Co. LLC, 5 A.D.3d 181 (1st Dept. 2004). In fact, shortly after the attack, tenants were allowed back into the premises to remove property and the building wa......
-
Turnwood Assocs., LLC v. Sutton Hay Day, Inc.
...(see Barash v. Pennsylvania Term. Real Estate Corp., 26 N.Y.2d 77, 82–83, 308 N.Y.S.2d 649, 256 N.E.2d 707 ; Sapp v. Propeller Co., 5 A.D.3d 181, 182, 772 N.Y.S.2d 515 ).In opposition, the defendants failed to raise a triable issue of fact. Contrary to the defendants' contention, the conver......