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Decided on May 10, 2005
Civil Court, New York County

57378/05

Counsel for Petitioner-Landlord:
Belkin, Burden, Wenig & Goldman, LLP
By: Jeffrey L. Goldman, Esq.
Counsel for Respondents-Tenants:
Finkelstein Newman LLP
By: Andrew J. Wagner, Esq. and Robert Finkelstein, Esq.

Manuel J. Mendez, J.
Petitioner brings this summary non-payment commercial Landlord and Tenant action against respondents to collect $46, 737.41 plus rent accruing in future months beginning in the month of March 2005 at the rate of $12,667.00 per month. This matter was tried by the Court on April 1, April 12 and April 13, 2005. At the conclusion of the trial, counsel for the respondent requested the opportunity to submit legal memoranda and the Court ordered the parties to make [*2]simultaneous submissions on April 27, 2005.
After a careful review of the briefs submitted in support of the parties respective positions, the testimony elicited at trial, the documents admitted in evidence and the law as applicable to this case, this Court finds as follows:
FACTUAL BACKGROUND
Respondent NAMASKAAR of Soho, Inc. Is the tenant of the premises located at 337A West Broadway New York, NY 10013(hereinafter "the Premises"). Respondent entered into possession of the premises under a written assignment and assumption of lease agreement made in March 1999 between NIOTA Inc. as assignor and respondent as assignee. Under this agreement, respondent assumed a written rental agreement dated June 1, 1996 between NIOTA, Inc. As tenant and West Broadway Glass Company as landlord. The rental agreement was to commence on July 1, 1996 and to expire on the 30th day of September 2006. For the period commencing on October 1, 2004 and ending September 30, 2005 rent was to be paid in the amount of $152, 012.42 per year payable in
equal monthly installments of $12,667.00 per month.[FN1]
Respondent operated a restaurant in the premises until November 14, 2004. Although he still had possession he did not pay the required rent for the months of December 2004, January and February 2005. Sometime in December 2004 or January 2005, respondent orally authorized Phillip Fahey, a purported assignee, to enter the premises to do some "painting work there." Unbeknownst to respondent, Mr. Fahey began performing renovation work without first obtaining the consent of the landlord. Petitioner learned of the work being performed on January 25, 2005 and following notice to respondent to cease and desist from unauthorized work, moved in Supreme Court under Index No. 600351/05 for a preliminary injunction "enjoining and restraining defendants, its agents, assigns and employees from commencing, continuing or conducting all structural and non-structural alterations, construction, improvement or any work whatsoever in the ground or second floor of the premises."[FN2]
The Order to Show Cause enjoining and restraining defendants, its agents, assigns and
employees was signed by the Hon. Judith Gische on January 31, 2005 and scheduled oral arguments for February 10, 2005.[FN3] Petitioner served a three days rent demand on Respondent on February 8, 2005 and on February 16, 2005 filed this non-payment petition in Landlord and Tenant Court.
On March 3, 2005, while the preliminary injunction was still in effect, Mr. Thomas Eschmann, an employee of Manhattan Skyline Management Corp., the entity that manages the building owned by petitioner that contains the premises in question, visited the premises. At the [*3]time, Mr. Eschmann was accompanied by Mr. Robert Esnard, Sy Weintraub, Patrick Trenalag and Mike Mehmoddic, the superintendent from a Sullivan Street property also managed by Manhattan Skyline.
Upon entering the premises Mr. Eschmann observed two men on the second floor, one had a tape measure and was measuring a section of wall. There was Sheetrock, spackle, a spackle knife and building supplies on the premises. Mr Eschmann did not see the two men do any work, and he did not address them in any way. After observing this, Mr. Eschmann and his companions went outside and waited for Robert Esnard to arrive. When he arrived the group re-entered the premises and Mr. Eschmann observed the two men getting ready to leave. He also observed Mr. Robert
Esnard confront them and say, "He was going to have them locked up if they didn't leave."[FN4] After the two men left Mr. Eschmann inspected the premises. "He felt the walls where there was some wet plaster; and looked at some BX cables that were hanging loosely in the wall, some
electricity work that was partly being done."[FN5]
After the men that had been on the second floor departed and Mr. Eschmann
had inspected the premises, other individuals arrived to complain about the ouster of the two men from the premises. After showing these individuals the wet plaster, Mr. Eschmann proceeded to tell them that the locks were going to be changed. Following this, Mr. Eschmann wrote a note in 81/2" x 11" paper that stated:
"Locks changed per court injunction (212) 977-4813 West Broadway Glass Company
Manhattan Skyline."[FN6]
Mr. Eschmann conceded that the Order to Show Cause signed by the Hon. Judith Gische did not authorize the locks to be changed.[FN7]
Respondent was not given a copy of the new keys. Mike Mehmodic, the Superintendent from the Sullivan Street property was the only person known by Mr. Eschmann to possess a copy of the keys. In order for Respondent, or anyone on his behalf to gain access to the premises, he would have to make arrangements through his attorney and Mike Mehmodic, the super, would have to be
available.[FN8]
The procedure in place for respondent to gain access to the premises after the locks were changed was a cumbersome one: first, respondent's attorney would contact the petitioner's attorney; petitioner's attorney would then contact Joe Jambore,; Joe would then contact Patrick Trenalag who manages the site, Patrick would then make arrangements for "Mike" the super to go over there and meet and let them in. Mr. Eschmann believes that's how it happened and how it continues to
happen.[FN9] [*4]
Respondent has requested that access to the premises be given to the proposed assignee. He has also requested that he be given access to the premises. Access to the premises has been granted and has also been denied.[FN10]
PARTIES ARGUMENTS
Petitioner argues that since tenant has been given access the fact that he doesn't have keys to the premises is irrelevant. Respondent was not disseized, ejected or put out of the premises in a forcible manner nor kept out by force or fear of personal violence, therefore he was not wrongfully evicted.
Respondent argues that by changing the locks and refusing to provide new keys, petitioner has ousted and excluded him from possession, this constitutes an illegal lockout and petitioner may not collect rent from March 3, 2005 forward. Furthermore, as a result of this unlawful eviction, petitioner is liable to respondent pursuant to RPAPL

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