Appeal from an order of the Civil Court of the City of New York, Richmond County (Philip S. Straniere, J.), entered December 19, 2005. The order denied tenant's motion to dismiss the petition.

Order reversed without costs and tenant's motion to dismiss the petition granted.

In this commercial nonpayment proceeding commenced in August 2005, tenant moved to dismiss on the ground that it was not in possession or control of the premises at the time the proceeding was commenced, having allegedly been constructively evicted therefrom as of July 2004. In support of its position, tenant attached to its moving papers, inter alia, a letter by its deputy general counsel, addressed to landlord, dated July 30, 2004. The letter, which indicated that it was being sent by certified mail, advised landlord that tenant had relocated due to construction taking place at the premises. In opposition to the motion, landlord not only failed to deny receipt of said letter but in fact acknowledged that tenant "without permission [or] consent of the landlord unilaterally moved out and relocated." Since it is undisputed that tenant was neither in possession nor claiming possession at the time this proceeding was commenced, the proceeding does not lie (see Warrin v Haverty, 149 App Div 564, 567-568 [1912]; Concord Vil. Mgt. LLC v Stevens, NYLJ, Feb 8, 2000 [App Term, 9th & 10th Jud Dists]; 2 Dolan, Rasch's Landlord and Tenant—Summary Proceedings § 38:26, at 593 [4th ed]).

In view of the foregoing, the order denying tenant's motion to dismiss is reversed and [*2]tenant's motion is granted.

Pesce, P.J., Weston Patterson, and Golia, JJ., concur.
Decision Date: March 28, 2007