Stahl Broadway Co. v. Haskins

180 Misc. 2d 705 | N.Y. App. Term. | 1999

OPINION OF THE COURT

Per Curiam.

Order entered April 28, 1998 affirmed, with $10 costs.

In this nonpayment proceeding commenced in July 1997, it is not disputed that the arrears sought for the period March 1994 through December 1996 were discharged in bankruptcy by order of the Bankruptcy Court dated April 7, 1997. Landlord purports to seek “a possessory judgment and warrant of eviction only”. We agree that the proceeding cannot be maintained since there was no valid basis to serve a rent demand pursuant to RPAPL 711 (2) for arrears which had previously been discharged. At the time a summary proceeding for nonpayment of rent is commenced there must be rent in arrears which has not been paid (2 Rasch, New York Landlord and Tenant— Summary Proceedings § 32:8 [4th ed]). Our decision in 840 W. End Assocs. v World Wide Destinations (NYLJ, Apr. 5, 1991, at 27, col 3), where we held that a subsequent discharge in bankruptcy did not render unenforceable a preexisting State court judgment of possession, is distinguishable on its facts.

Parness, P. J., McCooe and Freedman, JJ., concur.