85 A.D.2d 621 | N.Y. App. Div. | 1981
In an action to recover damages resúlting from the wrongful eviction of plaintiff from certain premises, defendant Romano appeals from a judgment of the Supreme Court, Suffolk County (Tanenbaum, J.), entered November 20, 1980, after a nonjury trial, which is in favor of plaintiff and against him in the total sum of $12,755.72. Judgment affirmed, with costs. The plaintiff tenant’s failure to pay rent did not entitle appellant to assume possession of the premises without notice to plaintiff, i.e., a demand for rent (See Pine Hill Assoc. v Malveaux, 93 Misc 2d 63). To justify the eviction of a tenant a landlord is required to prove that: (a) under the specific terms of the lease, the tenant’s right to enjoy and maintain control over the demised premises was conditioned on his payment of rent, in advance (see Herstein Co. v Columbia Pictures Corp., 4 NY2d 117; 2 Rasch, New York Landlord and Tenant [2d ed], § 894, and cases cited therein); and (b) he made a demand of the tenant for rent (see Van Rensselaer v Jewett, 2 NY 135; Pine Hill Assoc. v Malveaux, supra, 34 NY Jur,