Rodriguez v. HUB BK, LLC

🚨 Important Update for Landlord-Tenant Practitioners:

The “Futility Doctrine” Has Been Abolished in the Second Department

In Rodriguez v. HUB BK, LLC (App Term, 2d Dept, July 18, 2025), the Appellate Term formally abolished the “futility doctrine” in illegal lockout proceedings under RPAPL § 713(10).

For decades, lower courts routinely invoked “futility” to deny restoration to possession (even where a lockout had occurred) on the theory that restoration would only “forestall the inevitable eviction.” In other words, even if a landlord had used self-help, courts would sometimes decline to restore the occupant if they believed the person had no ultimate right to remain.

But in Rodriguez, the Second Department explicitly stated:

“Contrary to the Civil Court’s decision, futility is no longer a consideration in proceedings commenced pursuant to RPAPL § 713(10)[lockout proceedings]… To the extent this court has held to the contrary, those cases should no longer be followed.”

⚖️ What This Means

For practitioners in the Second Department, “futility” is no longer a valid defense to an illegal lockout claim. Courts must now restore any lawful occupant wrongfully excluded - even if their underlying tenancy, license, or succession claim might later fail in a separate proceeding.

rodrigues v hub bk llc.pdf

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