Scalzitti v. Nobe Caterers, Inc.

New York Supreme Court

Scalzitti v. Nobe Caterers, Inc.

193 Misc. 683, 85 N.Y.S.2d 26, 1948 N.Y. Misc. LEXIS 3701

DecidedDecember 5, 1948

StatusPublished

This text of 193 Misc. 683 (Scalzitti v. Nobe Caterers, Inc.) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Scalzitti v. Nobe Caterers, Inc., 193 Misc. 683, 85 N.Y.S.2d 26, 1948 N.Y. Misc. LEXIS 3701 (N.Y. Super. Ct. 1948).

Pincite

Opinion

Eder, J.

Motion to dismiss the complaint is granted. While this is claimed to be an action in ejectment, it is, in effect, a proceeding to dispossess the defendant, and appears to be a modus operandi to circumvent the requirements and provisions of the Business Rent Law (L. 1945, ch. 314, as amd.). Assuming this to be an action in ejectment, section 6 of the act prohibits the institution or. maintenance of any proceeding to recover possession of any business space for or on account of a default in payment of rent, unless it is alleged and proved that the requirements of section 6 have been met. Paragraph. fourth of the complaint alleges as the basis of this action that the defendant (tenant) has defaulted in payment of the monthly rent for August, September, October and November, 1948. While section 6 speaks of no “ proceeding ”, it is my view that this term was intended to include any method by which it was sought by the landlord to recover possession. A contrary construction leads to frustration of the legislative purpose and [684]*684object in the enactment of this emergency legislation. Circumvention thereof should not be encouraged and the matter should be viewed and considered in its true light. The complaint fails to set forth the allegations imposed, as condition precedent, in said section 6. Leave to amend is granted. Settle order.

Free access — add to your briefcase to read the full text and ask questions with AI

Eder, J.

Motion to dismiss the complaint is granted. While this is claimed to be an action in ejectment, it is, in effect, a proceeding to dispossess the defendant, and appears to be a modus operandi to circumvent the requirements and provisions of the Business Rent Law (L. 1945, ch. 314, as amd.). Assuming this to be an action in ejectment, section 6 of the act prohibits the institution or. maintenance of any proceeding to recover possession of any business space for or on account of a default in payment of rent, unless it is alleged and proved that the requirements of section 6 have been met. Paragraph. fourth of the complaint alleges as the basis of this action that the defendant (tenant) has defaulted in payment of the monthly rent for August, September, October and November, 1948. While section 6 speaks of no “ proceeding ”, it is my view that this term was intended to include any method by which it was sought by the landlord to recover possession. A contrary construction leads to frustration of the legislative purpose and [684]*684object in the enactment of this emergency legislation. Circumvention thereof should not be encouraged and the matter should be viewed and considered in its true light. The complaint fails to set forth the allegations imposed, as condition precedent, in said section 6. Leave to amend is granted. Settle order.

Cite This Page — Counsel Stack

Bluebook (online)

193 Misc. 683, 85 N.Y.S.2d 26, 1948 N.Y. Misc. LEXIS 3701, Counsel Stack Legal Research, https://law.counselstack.com/opinion/scalzitti-v-nobe-caterers-inc-nysupct-1948.