Opinion
April 28, 1960
Determination of Appellate Term modifying final order of Municipal Court, in summary proceedings, by fixing the amount of rent arrears at $1,000 instead of in the sum of $388.50, unanimously reversed on the law and the order of the Municipal Court reinstated, with costs to tenant-appellant in this court and in the Appellate Term. Under section 8 of the Business Rent Law as in effect on December 6, 1957 (L. 1945, ch. 314, as then last amd. by L. 1956, ch. 735) a landlord was entitled to bring summary proceedings to remove a statutory tenant to whom he had tendered a lease, as provided in subdivision (gg) of such section, in order to effect decontrol of the premises. Such decontrol would not be effected merely by the expiration of time following the tender of such lease, but rather by the ensuing termination of occupancy of the tenant. Consequently, landlord could not effect a new rental arrangement with tenant merely by making a demand, subsequent to the expiration of the six months' grace period, for the higher rent, even though no proper objection was made by tenant to such demand. So, too, the instant proceeding, based only on nonpayment of the higher rent demanded to the exclusion of allegations upon which a holdover proceeding might have rested, did not establish or effect decontrol. Although the record shows that tenant made a proper tender of the lower rent for the period for which the summary proceedings were brought, the landlord is, nevertheless, at this stage, entitled to the final order rendered by the Municipal Court, because tenant never appealed from such final order.
Concur — Breitel, J.P., M.M. Frank, Valente, McNally and Bastow, JJ.