Opinion
March 14, 1949.
Present — Carswell, Acting P.J., Johnston, Adel, Sneed and MacCrate, JJ. [ 193 Misc. 397.]
In an action by tenants against their former landlord, the complaint contains two causes of action, the first to recover damages for the right of action created by subdivision (d) of section 8 of the Business Rent Law (L. 1948, ch. 677), and the second to recover damages based on the fraudulent representations of the landlord that it wanted the premises for its immediate and personal use, thus depriving the tenants of the right given them by the statute to remain in the premises upon payment of the required rent. Defendant moved for judgment on the pleadings pursuant to rule 112 of the Rules of Civil Practice and for summary judgment pursuant to rule 113 of the Rules of Civil Practice, and plaintiffs asked for summary judgment in their favor. The Special Term held both causes of action insufficient because the removal of the plaintiffs was the result of a written demand to vacate, without the institution of summary proceedings, and granted defendant's motion for judgment on the pleadings and denied plaintiffs' request for summary judgment. Order modified on the law by striking out the first ordering paragraph and substituting in place thereof a provision that defendant's motion for judgment on the pleadings is granted to the extent of dismissing the first cause of action, and denying defendant's motion for judgment on the pleadings and for summary judgment with respect to the second cause of action. As so modified, the order is unanimously affirmed, with $10 costs and disbursements to appellants. In our opinion, a tenant is not entitled to maintain an action under the provisions of subdivision (d) of section 8 of the Business Rent Law where the removal by the tenants results solely from a demand by the landlord to vacate at the expiration of the tenant's lease. ( Joanette Juniors, Inc., v. Board of Home Missions of Cong. Christian Churches, 298 N.Y. 826; Cleaners Holding Corp. v. Trunz, Inc., 272 App. Div. 825.) However, where the removal is brought about by the fraudulent representations of the landlord, it is immaterial by what method the removal or "dispossession" of the tenant is effected. ( Vernat, Inc., v. Cross Brown Co., 273 App. Div. 843; Tourneur Realty Corp. v. Frank Bros. Footwear, 274 App. Div. 1049.) Since the affidavits present issues of fact, summary judgment may not be granted with respect to the second cause of action.