Olsker v. Niagara Frontier Transportation Authority

103 A.D.2d 1011, 478 N.Y.S.2d 214, 1984 N.Y. App. Div. LEXIS 19695

Opinion

— Order unanimously affirmed, without costs. Memorandum: The court did not err in summarily dismissing the petition brought pursuant to CPLR 5239. Under the terms of the lease agreement, petitioner’s security interest terminated upon his failure to cure the tenant’s default within 30 days or as soon thereafter as possible. A prior eviction proceeding, involving the parties herein and others, lasted for more than a year, and at no time did petitioner indicate a willingness or ability to pay the arrearages due the respondent. Hence, any interest held by the petitioner under the lease was forfeited, and no factual issue was raised by the petition. (Appeal from order of Supreme Court, Erie County, Sedita, J. — modify prior order.) Present — Hancock, Jr., J. P., Doerr, Boomer and O’Donnell, JJ.