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Pine Hill Associates v. Malveaux

93 Misc. 2d 63 Court Supreme Court, Appellate Term, Second Department, Decision date 1978-01-17 English

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p. 63
Pine Hill Associates, Appellant, v Benedict Malveaux, Respondent.
Supreme Court, Appellate Term, Second Department,
January 17, 1978
APPEARANCES OF COUNSEL
Singer & Silverstein (Alan D. Singer of counsel), for appellant. Rabinowe & Rabinowe (Albert W. Rabinowe of counsel), for respondent.

OPINION OF THE COURT

Memorandum.

Judgment and order of the court below (see 89 Misc 2d 234 )

p. 64
unanimously reversed, without costs, and matter remanded to the court below for a trial in accordance with the opinion herein.

Where provided for in the lease, peaceable re-entry by landlord is permissible where the tenant has failed to pay the rent when due (see Fults v Munro, 202 NY 34 ; Michaels v Fishel, 169 NY 381 ; Cohen v Carpenter, 128 App Div 862 ; Ajax Wrecking & Lbr. Co. v Baker, NYLJ, April 21, 1977, p 12, col 4; 2 Rasch, NY Landlord and Tenant 2d ed, § 734.) However, this being a common-law right, the landlord must first make a demand for the rent. (See Earl v Nalley, 273 App Div 451 , 454-455.) In the instant matter, the record is unclear as to whether or not a demand for rent was made before landlord exercised its right of re-entry and whether or not landlord, by its actions, willfully deprived tenant of his personal effects entitling tenant to the damages incurred thereby (10 NY Jur, Conversion, § 35; cf. Price v Hoyle, 82 Misc 2d 174 ). A new trial is necessary for further development of the facts.

Concur: Farley, P. J., Glickman and Gagliardi, JJ.

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