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Scott Mollen

Commercial Landlord-Tenant—Difference Between a License and a Lease—Court Dismissed Illegal Lockout Proceeding—Petitioner Was a Licensee, Not a Tenant—Under Certain Circumstances, a Landlord May Use Self Help Against a Commercial Tenant—Self Help Eviction Must Be Done in Peaceful Manner—Governor’s Moratorium on Evictions Inapplicable to Prior Non-Monetary Breach

A petitioner sought an order pursuant to Real Property Actions and Procedure Law (RPAPL) §713(10) restoring it to possession of three food vendor spaces through a commercial illegal lockout proceeding. The petitioner sought treble damages for alleged property damage and losses pursuant to RPAPL §853.

The parties had entered into a license agreement (agreement) for the use of three commercial spaces within the landlord’s food hall (Market). The Market lacks “any doors or walls between stations.” The petition described the Market as a “collection of more than 30 local and regional outposts.” The agreement required that the petitioner maintain a “Restaurant Letter A Grade by the NYC Health Department” (DOH).

The DOH issued a Restaurant Letter C Grade to the petitioner and a second Restaurant Letter C a month later. The DOH cited, inter alia, “filth flies were on food/refuse/sewage associated … flies present in the facility’s food and/or non-food areas,” improper food temperature and conditions that were conducive to attracting vermin.

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