Accomplishments of InterestCorbo Co. v. Feiden Enterprises, Inc.
(App. Term 1st Dept.)
Petitioner represented by Itkowitz PLLC
Order modified by dismissing the nonpayment petition without prejudice to petitioner's commencement of a new non-payment proceeding or a plenary action for rent; as modified, order affirmed, without costs.
Civil Court dismissed landlord's commercial nonpayment proceeding on the ground that landlord, subsequent to the commencement of the proceeding, accepted rental payments covering the arrears demanded in the petition. The petition had not been amended to include additional arrears claimed by landlord. The court erred to the extent it relegated landlord to plenary action for subsequently accruing rent arrears. There is no authority to foreclose landlord from its summary remedy to recover current rent.
In the event a new nonpayment proceeding is commenced, Article 25 of the parties lease proscribes the interposition of any counter claim of whatever nature or description in any such proceeding." Tenant's damage claims are more appropriately litigated in the context of a plenary action, which already been commenced (see Earbert Restaurant Inc. v. Little Luxuries, Inc., 99 AD2d 734).