Opinion
May 11, 1999
Appeal from the Civil Court of the City of New York, New York County (Marcy S. Friedman, J.).
Hutton Ingram Yuzek Gainen Carroll Bertolotti, L. L. P., New York City ( Marc J. Schneider of counsel), for appellant.
Salzman Jaffe, New York City ( Ira Salzman of counsel), for Hattie Haskins, respondent.
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.