Sanjurjo v Milio, 2021 NY Slip Op 50208(U) [70 Misc 3d 1224(A)]

Petitioner's third, fourth and fifth causes of action are grounded in her alleged unlawful
eviction. The petition's third cause of action states "Petitioner requests that the Court direct
Respondent-Owner restore complete possession of the Premises, including restoration of the
essential services of water and electricity to the Premises, the divestment of which constitutes an
unlawful eviction pursuant to RPAPL§ 768."

In relevant part, RPAPL § 768(a) states that it is unlawful to evict or attempt to evict a
lawful occupant except to the extent permitted by law" including "a governmental vacate order
[*6]by:" use of or threatening the use of force to induce
the occupant to vacate or conduct [including interruption or discontinuance of essential services]
which interferes with or is intended to interfere with or disturb an occupant's "comfort, repose,
peace or quiet" to "induce the occupant to vacate." (§§ 768(a)(i) and (ii))
[emphasis added]). § 768(a)(iii) prohibits "engaging or threatening to engage in any other
conduct which prevents or is intended to prevent lawful occupancy or to induce the occupant to
vacate including changing the locks on such entry door without supplying the occupant with a
key." (see also NYC Admin Code § 26-521—Unlawful Eviction).

The facts here do not support unlawful eviction as a matter of law. None of the subsections
of § 768(a) or (b) are applicable. While it is undisputed that water and electricity services
were discontinued, it is also undisputed that it resulted from the October 24, 2020 fire. In other
words, petitioner vacated the apartment through no fault of respondent.

On October 24, 2021, there was a fire at the apartment. Respondent avers that the premises