Pine Hill Associates v. Malveaux

OPINION OF THE COURT

Memorandum.

Judgment and order of the court below (see 89 Misc 2d 234) *64unanimously reversed, without costs, and matter remanded to the court below for a trial in accordance with the opinion herein.

Where provided for in the lease, peaceable re-entry by landlord is permissible where the tenant has failed to pay the rent when due (see Fults v Munro, 202 NY 34; Michaels v Fishel, 169 NY 381; Cohen v Carpenter, 128 App Div 862; Ajax Wrecking & Lbr. Co. v Baker, NYLJ, April 21, 1977, p 12, col 4; 2 Rasch, NY Landlord and Tenant 2d ed, § 734.) However, this being a common-law right, the landlord must first make a demand for the rent. (See Earl v Nalley, 273 App Div 451, 454-455.) In the instant matter, the record is unclear as to whether or not a demand for rent was made before landlord exercised its right of re-entry and whether or not landlord, by its actions, willfully deprived tenant of his personal effects entitling tenant to the damages incurred thereby (10 NY Jur, Conversion, § 35; cf. Price v Hoyle, 82 Misc 2d 174). A new trial is necessary for further development of the facts.

Concur: Farley, P. J., Glickman and Gagliardi, JJ.