Tenant Surrendered Possession by Operation of Law 8 Months Before Landlord Changed Locks

Tenant sued landlord for illegal lockout in April 2023. The court dismissed the case when tenant failed to appear in court on May 1, 2023. But the court granted tenant's subsequent Order to Show Cause to vacate the dismissal, and then held a hearing. Tenant showed that he was living in the apartment and left for an extended period of time on Aug. 12, 2022. At that time, tenant removed some of his belongings in a U-Haul truck. But tenant returned in April 2023 and sought access to the apartment. Landlord had changed the apartment locks, and had also commenced a summary nonpayment proceeding against tenant before tenant disappeared in August 2022. Tenant denied that he had given up possession of the unit at that time and claimed that he left in August 2022 to attend to his fiancee during a high-risk pregnancy. At the court's hearing, tenant showed that he was legally occupying the apartment at all times before the illegal lockout.

The court ruled for landlord. A "surrender by operation of law" can be inferred from the conduct of the parties. Tenant left in August 2022 and removed furniture, a mattress, and a couch. He was gone for more than eight months when landlord changed the apartment locks. 

Espinoza v. Huai Qiong Ke: Index No. L&T 10133/23, 2023 NY Slip Op 50606(U)(Civ. Ct. Queens; 5/31/23; Guthrie, J)