JEFERSON VALLEY MALL LIMITED PARTNERSHIP v. FRANCHISE ACQUISITION GROUP INC (2008)

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 nonjury trial, awarded landlord possession and the sum of $333,231.20 in a nonpayment summary proceeding.

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, 132 N.Y.S. 379 [App. Term 1911];  518 E. 80th St. Co., LLC v. Smith, N.Y.L.J., Jan. 29, 2003 [Civ. Ct., N.Y. County];  2 Dolan, Rasch's Landlord and Tenant-Summary Proceedings § 32:5 [4th ed.];   see also Samson v. Rose, 65 N.Y. 411 [1875];  Earl v. Nalley, 273 App.Div. 451, 78 N.Y.S.2d 92 [1948] ).  “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, 141 N.Y.S. 959 [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, 213 N.Y.S.2d 270 [1961];  McMahon v. Howe, 40 Misc. 546, 82 N.Y.S. 984 [1903];  2 Dolan, Rasch's Landlord and Tenant-Summary Proceedings § 32:22 [4th ed.] ).

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 A.D.3d 866, 841 N.Y.S.2d 668 [2007];  see also Cohn v. Lionel Corp., 21 N.Y.2d 559, 289 N.Y.S.2d 404, 236 N.E.2d 634 [1968] ).   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 A.D.3d 1231, 835 N.Y.S.2d 764 [2007] [allowing the inconsistent pleading of nonpayment and holdover causes of action] ) and would affirm the final judgment.

McCABE, J.P., and MOLIA, J., concur. TANENBAUM, J., dissents in a separate memorandum.