In support of that proposition, the court cited a 1987 Appellate Term, First Department decision in Berkeley Associates Co. v. Gersten2 where the appellate court stated that “the commencement of the later nonpayment proceeding vitiated the dormant holdover.”

The court then noted the following exception to that general proposition:

However, where a nonpayment proceeding is brought prior to the termination of the lease, a landlord may continue with the nonpayment as long as its actions do not suggest that the tenancy is still in effect.


In support of that principle, it cited a 2006 Supreme Court, New York County decision in 1050 Tenants Corp. v. Lapidus.3

In 1050 Tenants Corp. the defendants argued that the plaintiff had purportedly waived the right to bring a Supreme Court ejectment action because, after termination of the lease on June 15, 2005, plaintiff had continued a 2004 non-payment proceeding against them and obtained a money judgment which included rent through the beginning of September 2005. Justice Marilyn G. Diamond rejected that argument, stating:

The fact that while a nonpayment proceeding is pending, an event occurs which the landlord believes terminates the tenancy hardly requires that the landlord discontinue the pending proceeding so long as the landlord, after the attempted termination of the lease, does not make any representation or assert any argument in the nonpayment proceeding which suggests that the lease is still in effect. 4

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