Nonpayment Proceeding Didn't Bar Holdover Proceeding

Landlord sued to evict tenants for nonpayment of rent while their lease was in effect. Later, while the nonpayment case was pending, landlord sent tenants a tenancy termination notice and then started a holdover proceeding. Tenants asked the court to dismiss the holdover case. They claimed that the pending nonpayment case required dismissal of the later holdover case. The court ruled against tenants. If landlord had started a holdover proceeding first, and then commenced a nonpayment case, the nonpayment proceeding would have operated as a waiver to the right to go forward with the holdover. But as long as landlord's actions didn't indicate that the tenancy was still in effect, landlord was free to start a holdover proceeding when tenants' lease ended. Landlord didn't reaffirm the tenancy or waive its right to continue the holdover. And in the nonpayment case, landlord sought only rent that was due while tenants' lease was still in effect.

Third Lenox Terrace Associates v. Jones: NYLJ, 4/2/08, p. 27, col. 3 (Civ. Ct. NY; Martino, J)