## Facts

- Plaintiffs were the children and alleged sole heirs and distributees of deceased tenants who had lived in defendants’ apartment building for about fifty years.
- After the father died (January 1981) and the mother died (June 1981), defendants (landlords) entered the apartment and removed its contents.
- Plaintiffs alleged defendants forcibly entered the apartment, removed personal property of monetary and sentimental value, and caused plaintiffs emotional distress.
- Plaintiffs sued in their own names, asserting two causes of action based on (1) forcible entry and (2) wrongful removal of property.
- The record showed plaintiffs themselves never had possession of the apartment.

## Issues

1. Whether heirs who never possessed the premises have capacity to sue in their own names for damages for forcible entry under RPAPL 853 and related claims based on removal of the decedents’ property.
2. Whether, on plaintiffs’ motion for summary judgment, the court may grant summary judgment to defendants dismissing the complaint under CPLR 3212(b).

## Decision

- The Appellate Division affirmed the denial of plaintiffs’ motion for summary judgment on liability.
- The court modified the order to grant summary judgment to defendants and dismissed the complaint under CPLR 3212(b).
- The court held plaintiffs lacked capacity because an action for forcible entry under RPAPL 853 lies only for the person who had possession, and plaintiffs never had possession of the apartment.
- The order, as modified, was affirmed without costs or disbursements.

## Legal Principles

- A claim for damages for forcible entry under RPAPL 853 sounds in tort and belongs only to the person who had possession of the premises at the time of the alleged entry.
- Parties who never had possession lack capacity to sue for forcible entry under RPAPL 853, even if they claim rights as heirs or distributees.
- Under CPLR 3212(b), when a summary judgment motion is made, the court may award summary judgment to the nonmoving party if the record establishes entitlement to judgment as a matter of law.

## Conclusion

The court dismissed heirs’ forcible entry-based claims because RPAPL 853 protects possessory interests, and plaintiffs’ status as heirs did not substitute for their lack of possession; the appellate court properly granted summary judgment to defendants under CPLR 3212(b) on the existing record.


Glass v. Wiener, 92 A.D.2d 584, 459 N.Y.S.2d 471 (N.Y. App. Div. 2d Dep’t 1983)