Opinion
October 8, 1951.
The tenant and undertenant are in possession as statutory tenants of commercial premises after the expiration of a lease term on December 31, 1944. On April 24, 1950, petitioner became the lessee of the premises under a lease for twenty-one and a half years. This is a summary proceeding to recover possession under the provisions of the 1950 amendment to the Commercial Rent Law (L. 1945, ch. 3, § 8, subd. [d], par. [2], as amd. by L. 1950, ch. 327). The Municipal Court dismissed the amended petition on the ground of insufficiency in that summary proceedings could not be maintained in the absence of a landlord-tenant relationship, and there was no such relationship between the parties to this proceeding. The Appellate Term reversed and denied the motion to dismiss the amended petition on the ground that petitioner was authorized to maintain the proceeding under the 1950 amendment to the Commercial Rent Law. This court granted leave to the tenant and undertenant to appeal from the determination of the Appellate Term. Order of the Appellate Term reversed on the law, with costs to appellants in all courts, and final order of the Municipal Court dismissing the amended petition on the merits reinstated. Petitioner may not maintain summary proceedings to recover possession because the relation of landlord and tenant does not exist between the parties. ( Eells v. Morse, 208 N.Y. 103.) Petitioner is neither the landlord, lessor, nor assignee of the landlord within the meaning of subdivisions 1 and 6 of section 1414 of the Civil Practice Act. ( Imbert v. Hallock, 23 How. Prac. 456, 462; Cullinan v. Goldstein, 61 Misc. 82, both cited with approval in Eells v. Morse, supra.) The 1950 amendment to the Commercial Rent Law was not intended to amend the provisions of section 1414 of article 83 of the Civil Practice Act so as to include petitioner in the class of persons entitled to maintain summary proceedings as therein provided. ( Ellenbogen v. Caldwell, 270 App. Div. 946.) Petitioner's remedy is by action in ejectment. ( Eells v. Morse, supra; United Merchants' Realty Improvement Co. v. Roth, 193 N.Y. 570, 575; Cannon v. Gordon, 181 Misc. 950; Hatem v. Wiederhorn, 197 N.Y.S. 835.) Nolan, P.J., Carswell, Johnston, Sneed and Wenzel, JJ., concur. [ 200 Misc. 605, revd. 200 Misc. 609.] [See post, p. 665.]