SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM 9th and 10th JUDICIAL DISTRICTS
November 19, 2008
JEFFERSON VALLEY MALL LIMITED PARTNERSHIP, RESPONDENT,
FRANCHISE ACQUISITION GROUP, INC. D/B/A GOODFELLA'S BRICK OVEN PIZZA, PASTA AND STEAK AND MODERN ART, APPELLANT.
Appeal from a final judgment of the Justice Court of the Town of Yorktown, Westchester County (Jeffrey A. Cohen, J.), entered November 30, 2006. The final judgment, after a non-jury trial, awarded landlord possession and the sum of $333,231.20 in a nonpayment summary proceeding.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the printed Miscellaneous Reports.
PRESENT: McCABE, J.P., TANENBAUM and MOLIA, JJ.
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 re-entry 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 [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 ; Earl v Nalley, 273 App Div 451 ). "While 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 ; see Matter of Farone v Burns, 27 Misc 2d 998 ; McMahon v Howe, 40 Misc 546 ; 2 Dolan, Rasch's Landlord and Tenant—Summary Proceedings § 32:22 [4th ed]).
McCabe, J.P., and Molia, J., concur.
Tanenbaum, J., dissents in a separate memorandum.
Tanenbaum, J., dissents and votes 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 ; see also Cohn v Lionel Corp, 21 NY2d 559 ). Consequently, I would hold that the pendency of the ejectment action did not require the dismissal of the instant nonpayment proceeding (cf. Kern v Guller, 40 AD3d 1231  [allowing the inconsistent pleading of nonpayment and holdover causes of action]) and would affirm the final judgment.
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