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89-09 Sutphin Corp. v. Scarinzi

187 Misc. 536 Court Supreme Court, Appellate Term, Second Department, Decision date 1946-10-03 English

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p. 536
89-09 Sutphin Corp., Landlord, Respondent, v. “ Joseph ” Scarinzi, Tenant, Appellant, and “John Doe”, Undertenant.
Supreme Court, Appellate Term, Second Department,
October 3, 1946.
p. 537
Francis A. McGrath, for respondent.

Memorandum The landlord did not terminate the tenancy by any notice. Summary proceedings, therefore, could not be instituted (Civ. Prac. Act, § 1410).

No new ground for summary proceedings is created by subdivision (b) of section 8 of chapter 314 of the Laws of 1945. Before the statute, a landlord’was required to establish a.contractual right to terminate the tenancy for a breach (Michaels v. Fishel, 169 N. Y. 381 , 389) and was obliged to exercise that right before instituting summary proceedings. (Burnee Corp. v. Uneeda Pure Orange Brink Co., Inc., 132 Misc. 435 ; Janes v. Paddell, 67 Misc. 420 ). Subdivision (b) of section 8 simply lifts the ban against summary proceedings by a landlord having a contractual right to terminate a lease for a breach, and who has terminated it, provided there was continuance after notice of a breach of a substantial obligation.

The final order should be unanimously reversed on the law, with $30 costs to tenant, and proceedings dismissed.

MacCrate, Smith and Fennelly, JJ., concur.

Order reversed, etc.

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