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

were damaged and dangerous to enter. As such, he changed the locks. According to respondent,
petitioner accessed the apartment when she needed to.[FN9]
Petitioner acknowledges in her affidavit that the October 24, 2020 fire destroyed much of the
kitchen, bathroom, living room and the bedrooms.[FN10]
There is no dispute that the premises were uninhabitable after the fire and that the petitioner
"temporarily vacated the [p]remises due to fire on October 24, 2020."[FN11]
There is no dispute that petitioner had a key to the apartment since January 6, 2021.

As to the argument that respondent illegally evicted petitioner when he changed the unit's
locks, the court first notes that claim is not termed a cause of action in the attorney prepared
amended petition. However, since the primary function of a pleading is to apprise an adverse
party of the pleader's claim and to prevent surprise, (see CPLR §3018(b), Cole v
Mandell Food Stores, 93 NY2d 34, 40 [1999], Giacobbe v 115 Mulberry, LLC, 2018
NY Slip Op. 30415[U] at 7 (Sup Ct, New York County 2018], the court liberally construes the
amended petition,[FN12]
giving the pleader the benefit of whatever can fairly be gathered from the pleading. (see
Hucey v Frezza, 2021 NY Slip Op 50186[U] [Civ Ct, Kings County 2021] citing Rich v
Lefkovits, 56 NY2d 276, 281 [1982]).

As to the merits of the claim under RPAPL § 768, this court finds no support for the
proposition that not having a key to an uninhabitable apartment constitutes an unlawful eviction.
§ 768 is replete with references to "occupancy," and mentions disturbing an occupant's
"comfort, repose, peace or quiet."

Respondent did not cause and was not responsible for petitioner's loss of occupancy and