Romanello v. Hirschfeld , 470 N.Y.S.2d 328 ( 1983 )

Fein and Milonas, JJ.,

dissent in a memorandum by Milonas, J., as follows: In my opinion, the order being appealed should be modified to the extent of granting partial summary judgment for liability on the claim of wrongful eviction. The facts are uncontradicted that in September of 1978, there was a forcible entry into plaintiffs’ apartment. Their property was removed, new locks were installed on the apartment door, and they were denied access to the apartment, as well as deprived of possession of their personal property, including furniture, clothing, medicines, and financial records. All of this was effectuated by defendants, who at the time in question owned and managed the subject premises, without the benefit of any legal process or other notice. Defendants also do not dispute the fact that plaintiff Romanello had already paid the September rent when she was concededly deprived of access to her apartment and had her possessions removed. The same treatment was accorded to plaintiffs Concardi and Tricarico although they had apparently received permission from defendant Hirschfeld’s managing agent to move in as Romanello’s roommates. The law is clear and well established that a landlord may not oust an occupant of an apartment from those premises without resorting to proper legal process and providing legal notice. Consequently, Special Term should have granted plaintiffs’ motion for summary judgment on the issue of liability with respect to the first, second and third causes of action in the complaint limited to the claim for wrongful eviction. Plaintiffs would still have to proceed to trial with regard to all other matters, including their right to recovery of the apartment, and the compensatory, punitive and other equitable relief to which they may be entitled.