Jefferson Valley Mall Limited Partnership v. Franchise Acquisition Group, Inc.

Majority

p. 56

[874 NYS2d 667]

Jefferson Valley Mall Limited Partnership, Respondent, v Franchise Acquisition Group, Inc., Doing Business as Goodfella’s Brick Oven Pizza, Pasta and Steak and Modern Art, Appellant.

Supreme Court, Appellate Term, Second Department,

November 19, 2008

p. 57

APPEARANCES OF COUNSEL

Law Offices of Neal Brickman, PC., New York City (Ethan Y. Leonard of counsel), for appellant. Stein, McGuire, Pantages & Gigl, LLP, New York City (Gerald J. Gunning of counsel), for respondent.

OPINION OF THE COURT

Memorandum.

Final judgment reversed without costs and petition dismissed.

Tenant’s motion to dismiss this nonpayment proceeding based on the pendency of the previously commenced ejectment action should have been granted. The act of commencing an ejectment action is deemed a reentry by landlord into possession, and an election by landlord of the remedy of terminating the lease for breach of a condition (Janes v Paddell, 74 Misc 409 [App Term 1911]; 518 E. 80th St. Co., LLC v Smith, NYLJ, Jan. 29, 2003, at 19 [Civ Ct, NY County]; 2 Dolan, Rasch’s Landlord and Tenant — Summary Proceedings § 32:5 [4th ed]; see also Samson v Rose, 65 NY 411 [1875]; Earl v Nalley, 273 App Div 451 [1948]). “[W]hile the ejectment action was pending, no summary proceedings could be brought by the landlord based on the continuance of the tenancy” (Fifty-fourth St. Realty Co. v Goodman, 80 Misc 639 , 641 [App Term, 1st Dept 1913]). Accordingly, the final judgment is reversed and the petition dismissed.

We incidentally note that a proper rent notice must require “in the alternative, the payment of the rent, or the possession of the premises” (RPAPL 711 [2]; see Matter of Farone v Burns, 27 Misc 2d 998 [1961]; McMahon v Howe, 40 Misc 546 [1903]; 2 Dolan, Rasch’s Landlord and Tenant — Summary Proceedings § 32:22 [4th ed]).

(dissenting and voting to affirm the final judgment in the following memorandum). In my view, tenant’s motion to dismiss based on the pendency of the ejectment action was properly denied.

The principles set forth in the authorities relied upon by the majority arise from a period prior to the enactment of the CPLR, which expressly allows causes of action to “be stated alternatively or hypothetically” (CPLR 3014) and permits relief in the alternative to be demanded (CPLR 3017 [a]; see Gold v 29-15 Queens Plaza Realty, LLC, 43 AD3d 866 [2007]; see also Cohn v Lionel Corp., 21 NY2d 559 [1968]). Consequently, I would hold

Dissent

p. 58

that the pendency of the ejectment action did not require the dismissal of the instant nonpayment proceeding (cf. Matter of Kern v Guller, 40 AD3d 1231 [2007] [allowing the inconsistent pleading of nonpayment and holdover causes of action]) and would affirm the final judgment.

McCabe, J.E, and Molía, J., concur; Tanenbaum, J., dissents in a separate memorandum.

Cases cited

Janes v. Paddell 74 Misc 409 N.Y. App. Term p. 57
Samson v. Rose 65 NY 411 N.Y. Comm'n App. p. 57
Fifty-Fourth Street Realty Co. v. Goodman 80 Misc 639 N.Y. App. Term at 641 p. 57
Farone v. Burns 27 Misc 2d 998 Saratoga Cty. Ct. 1961-04-06 p. 57
McMahon v. Howe 40 Misc 546 Saratoga Cty. Ct. p. 57
Gold v. 29-15 Queens Plaza Realty, LLC 43 AD3d 866 N.Y. App. Div. 2007-09-11 p. 57
Cohn v. Lionel Corp. 21 NY2d 559 N.Y. 1968-04-04 p. 57
Kern v. Guller 40 AD3d 1231 N.Y. App. Div. 2007-05-10 p. 58