APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS

DECISION

Motion by tenant-respondent to dismiss appeals from orders of the Civil Court of the City of New York, Queens County (G. Badillo, J.), dated May 18, 2004 and October 27, 2004 granted to the extent of dismissing the appeal from the order dated May 18, 2004 on the ground that said order was superseded by the order dated October 27, 2004 and otherwise denied.

The instant holdover proceeding is predicated on the termination of an alleged month-to-month tenancy. Tenant defends on the ground that his loft unit is protected under either the Emergency Tenant Protection Act of 1974 or the Loft Law (Multiple Dwelling Law art 7-C). In the orders appealed from, the lower court awarded summary judgment to tenant, first on the ground that the unit was rent stabilized and subsequently, upon in effect reargument, on the ground that the unit was protected under the Loft Law. Prior to perfecting its appeals from these orders, landlord commenced a nonpayment proceeding, alleging that the unit is subject to the Loft Law and that landlord is in compliance with its obligations under said Law, and seeking five years' worth of arrears. Tenant now moves to dismiss landlord's appeals in this holdover proceeding, arguing that by commencing the nonpayment proceeding landlord has elected its remedy and vitiated the notice of termination (see e.g. McCormack [reported as McCoack] v Geidel, NYLJ, Nov. 22, 1978 [App Term, 2d & 11th Jud Dists]).

Since here, unlike in McCormack, the nonpayment proceeding has not been prosecuted to judgment, the doctrine of judicial estoppel does not apply (Jones Lang Wooten USA v LeBoeuf, Lamb, Greene & MacRae, 243 AD2d 168, 176 [1998]; Rockaway One Co. v Califf, 194 Misc 2d 191, 193 [App Term, 2d & 11th Jud Dists 2002]). While there are circumstances in which the service of a rent demand and/or the commencement of a nonpayment proceeding might vitiate a termination notice (see e.g. Motor Parkway Realty Corp. v IPM Prods. Corp., NYLJ, May 1, 1997 [App Term, 9th & 10th Jud Dists]), here the holdover proceeding predicated on the termination notice was prosecuted to completion prior to the commencement of the nonpayment proceeding (see e.g. Berkeley Assoc. v Gersten, NYLJ, May 7, 1987 [App Term, 1st Dept]). In this posture, landlord was entitled to commence the nonpayment proceeding in reliance on the court's adjudication. Contrary to tenant's contention, the mere commencement of a proceeding is no longer considered an election of remedies (see 1 NY Jur 2d, Actions § 14). Even if it were so considered, however, the commencement of a second action is not an election that will bar an earlier-commenced action (Clark v Kirby, 243 NY 295, 302 [1926]). In addition, in the circumstances presented, it cannot be said that the commencement of the nonpayment proceeding evidenced an intent to waive or abandon the instant holdover proceeding (see id.) or that it acted to revive the tenancy (Rockaway One Co. v Califf, 194 Misc 2d at 193). Accordingly, tenant's motion is granted only to the extent of dismissing the appeal from the Civil Court's first order, which order was superseded, and is otherwise denied.

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Presiding Justice, Appellate Term

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Associate Justice, Appellate Term

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Associate Justice, Appellate Term