REALTY CORP v. PUTNAM (1999)

In two related actions, inter alia, to recover possession of two apartments, Robert Putnam, the defendant in Action No. 1, and Joseph Militello, the defendant in Action No. 2, appeal from (1) an order of the Supreme Court, Kings County (Jones, J.), dated January 12, 1998, which granted the plaintiff's motion for partial summary judgment on its causes of action for ejectment, and (2) an order of the same court, dated February 25, 1998, which directed the Sheriff of Kings County to eject the defendants and everyone “ holding * * * under” them from the subject apartments and deliver possession thereof to the plaintiff.

ORDERED that the orders are affirmed, without costs or disbursements.

The plaintiff's motion for partial summary judgment was properly granted.   The plaintiff, a landlord, effectively terminated the defendants' respective leases, as it was permitted to do under Section 8 of each lease, due to the defendants' respective failures to pay the rent due thereunder.   Since there was no valid Certificate of Occupancy, a summary proceeding to recover possession does not lie.   Under these circumstances, the plaintiff was entitled to partial summary judgment on its causes of action for ejectment (see, 99 Commercial St. v. Llewellyn, 240 A.D.2d 481, 658 N.Y.S.2d 130).

The defendants' remaining contentions are either without merit or academic.

MEMORANDUM BY THE COURT.