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JEFFERSON v. FRANCHISE GROUP

22 Misc.3d 56 (2008)

JEFFERSON VALLEY MALL LIMITED PARTNERSHIP, Respondent, v. FRANCHISE ACQUISITION GROUP, INC., Doing Business as GOODFELLA'S BRICK OVEN PIZZA, PASTA AND STEAK AND MODERN ART, Appellant.

Appellate Term of the Supreme Court of New York, Second Department.

November 19, 2008.

Attorney(s) appearing for the Case

Law Offices of Neal Brickman, P.C., New York City (Ethan Y. Leonard of counsel), for appellant.

Stein, McGuire, Pantages & Gigl, LLP, New York City (Gerald J. Gunning of counsel), for respondent.

McCABE, J.P., and MOLIA, J., concur; TANENBAUM, J., dissents in a separate memorandum.

OPINION OF THE COURT

MEMORANDUM.

Final judgment reversed without costs and petition dismissed.

Tenant's motion to dismiss this nonpayment proceeding based on the pendency of the previously commenced ejectment action should have been granted. The act of commencing an ejectment action is deemed a reentry by landlord into possession, and an election by landlord of the remedy of terminating the lease...

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