| Matter of First Citizens Natl. Bank v Koronowski |
| 2007 NY Slip Op 10383 [46 AD3d 1474] |
| December 21, 2007 |
| Appellate Division, Fourth Department |
| In the Matter of First Citizens National Bank, Respondent, vCherylea Koronowski et al., Appellants. |
—[*1] Harris Beach PLLC, Pittsford (Laura W. Smalley of counsel), forpetitioner-respondent.
Appeal from an order of the Allegany County Court (Thomas P. Brown, J.), entered June 11,2007. The order affirmed a judgment (denominated order) of the Wellsville Town Court (Noel G.Herberger, J.), entered December 13, 2006, which granted petitioner damages in the amount of$3,000, based on respondents' nonpayment of rent.
It is hereby ordered that the order so appealed from be and the same hereby is unanimouslyaffirmed without costs.
Memorandum: Petitioner purchased property at a foreclosure sale and thereafter commencedthis proceeding in Wellsville Town Court seeking possession of the premises from respondentsas well as a warrant to remove them from the premises. Town Court, inter alia, issued a warrantof eviction and granted petitioner's request for damages in the amount of $3,000, based onrespondents' nonpayment of rent. County Court affirmed the "order" of Town Court, and we nowlikewise affirm the order of County Court.
Contrary to the contention of respondents, they were obligated to pay rent for as long as theywere in possession of the premises inasmuch as it is well settled that " '[t]he obligation of acommercial tenant to pay rent is not suspended if the tenant remains in possession of the leasedpremises' " (Westchester County Indus. Dev. Agency v Morris Indus. Bldrs., 278 AD2d232, 232 [2000], lv dismissed 96 NY2d 792 [2001]; see generally Barash vPennsylvania Term. Real Estate Corp., 26 NY2d 77, 83-84 [1970]). The record does notsupport the contention of respondents that petitioner interfered with their possession of thepremises. Furthermore, "[t]he issuing of a warrant for the removal of a tenant cancels theagreement under which the [tenant] removed held the premises, and annuls the relation oflandlord and tenant" (RPAPL 749 [3]; see also Weichert v O'Neill, 245 AD2d 1121[1997]). Any subsequent payment of rent by respondents does not affect petitioner's right to evictrespondents in the absence of evidence that petitioner intended to revive respondents' tenancy(see J.A.R. Mgt. Corp. v Foster, 109 Misc 2d 693, 694 [1980]; see also 90 NYJur 2d, Real Property—Possessory Actions § 263).
In light of our determination, we need not consider respondents' remaining contentions.Present—Hurlbutt, J.P., Martoche, Smith, Peradotto and Pine, JJ.