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Gombo v. Martise

44 Misc. 2d 239 Court Supreme Court, Appellate Term, Second Department, Decision date 1964-09-30 English

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p. 239
Ralph Gombo, Appellant, v. Yvonne Martise et al., Respondents.
Supreme Court, Appellate Term, Second Department,
September 30, 1964.
Segal, Werner S Segal for appellant. No one appearing for respondents.

In onr opinion, a finding of actual eviction implicit in the decision of the trial court is unwarranted upon this record; nor may the tenants in the absence of actual removal from the premises, claim constructive eviction so as to defeat these nonpayment proceedings (see City of New York v. Pike Realty Corp., 247 N. Y. 245 ). However, whether or not the tenants are entitled to invoke the beneficial provisions of section .755 of the Real Property Actions and Proceedings Law is a matter for determination de novo in the court below.

The judgments dismissing landlord’s petitions should be unanimously reversed, without costs, and a new trial ordered. Appeal from order denying motion to vacate judgments and for other relief dismissed as academic.

Concur — Hart, Martuscello and Hogan, JJ.

Judgments reversed, etc.

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