removed prior to the issuance of the notice of termination. The court also refused to allow the
Petitioner to substitute another violation for grounds of eviction. The First Dep't held:
The notice of termination of the lease dated August 5, 1971 refers to violation 4220/70
(double doors). This violation was removed of record on May 20, 1971. It had been removed
prior to the issuance of the notice of termination. Further, defendant was bound by the notice
served and cannot substitute another violation. In any event, even this violation (Z7-71) was
removed of record on August 4, 1971.
2 Dolan, Rasch's Landlord and Tenant - Summary Proceedings, §23:38, at
201-2 [4th ed]:
When parties expressly stipulate what contingency will result in a cancellation of a lease, the
occurrence of that stipulated contingency, and no other, is necessary to justify the cancellation
thereof. Thus, the assertion of one ground of forfeiture to terminate a tenancy precludes the right
to rely on another ground which existed at the same time, in an action or proceeding involving a
forfeiture. Where the violation referred to in the notice of termination had been removed prior to
the issuance of the notice of termination, the notice was ineffective to terminate the lease; the
landlord is bound by the notice served, and cannot substitute another violation.
Based upon the above, Respondent complied with the February 4, 2008 notice and remedied
the situation before issuance of the termination of lease notice of February 11, 2008, and thus
cannot be evicted on this ground.
[*6]
Petitioner cannot substitute the alleged criminal action of
Respondent and Mr. Goodman as the basis for eviction where the notice provisions of the lease
were not complied with.
CONCLUSION
Petitioner's