A noteworthy dispute involved devising a legal strategy for a $500 million construction project that was being threatened with indefinite delay by a commercial tenant who refused to vacate his premises. In this case, the owner of a restaurant operation had previously agreed with a developer to be paid a lump sum for early termination of his lease, once the developer provided notice of intent to demolish the building. The developer wanted to keep the restaurant occupied while quietly assembling adjacent parcels.  After the balance of the site had been assembled and a notice of demolition had been issued, the tenant demanded exorbitant sums and a joint venture interest in the project. The tenant made clear to the developer that it would take many years to recover the property through litigation, and that the developer had little choice.  The legal strategy that was utilized to recover the premises, without going to court, was to implement a rarely used common law remedy in New York known as “self-help”.  At common law, if effected without disturbing the peace, a landlord could lawfully remove the property of a commercial tenant whose lease had expired, and thus reclaim the premises.  This meant the tenant had to be removed without his knowledge as the remedy of self-help does not permit the use of force or unlawful means.  Faced with the prospect of an indefinite delay of a construction project for the 1,000,000 SF tower, the developer took the matter into his own hands on advice of counsel. With advance notice to only the police department and a moving company, the developer implemented “Operation Self-Help” one Sunday morning before dawn, by removing the tenant’s equipment, inventory, furniture and fixtures to storage in 40-foot trailers, while New York City police officers assigned to maintain the peace stood guard.  The tenant arrived on Monday morning to find the windows boarded, the locks changed, and a warehouse receipt nailed to the door with notification that the restaurant had been packed and shipped to a storage facility, and that any inquiry should be addressed to the local police precinct.             

The developer commenced demolition of the building after the tenant, who had initiated suit to enjoin demolition, lost the motion. The tenant's claim for $100 million in damages for ejectment and wrongful eviction and a claim for restoration of the demolished building to its prior condition were denied, including on appeal to the state's highest court.  The Appellate Division ruled that the doctrine of self-help has never been extinguished in New York and continues to apply so long as removal of the tenant and its property is effected without force or unlawful means. The court also ruled that the self-help procedure was not a violation of the Due Process Clause by virtue of the fact that state law allowed a landlord to take unilateral action without notice to the tenant. The court indicated the tenant should be viewed as a trespasser under such circumstances. 
Litigation Counsel: Burton Ross, Esq., Jaffe, Ross & Light LLP.