As the majority points out, a tenant who has attorned "continues to hold upon the same terms as he held of his former landlord” (Austin v Ahearne, 61 NY 6, 15 [emphasis deleted]). Upon such attornment, a landlord-tenant relationship is created (see, Court Tower Corp. v Miss Silver Co., 106 Misc 2d 451, 453). However, here we have no attornment and thus no conventional landlord-tenant relationship. Absent such relationship, i.e., one created by agreement between the parties, no summary proceeding for non-payment of rent may be brought (see, Rasch, New York Landlord and Tenant—Summary Proceedings §§ 1180, 1181 [2d ed]) and the receiver’s only remedy is to ask the court to enforce its order directing attornment or to issue a writ of assistance.
Thus, the court properly refused to permit the tenants to assert warranty of habitability claims as a defense to the enforcement relief sought in this foreclosure action (see, Home Sav. Bank v 137 Duane St. Assocs., 197 AD2d 368, lv denied 83 NY2d 755 [where this Court, without specifically addressing them, rejected identical claims in a similar foreclosure action]).
Appellants’ reliance upon Department of Hous. Preservation & Dev. v Sartor (109 AD2d 665) is misplaced inasmuch as the court-appointed fiduciary there brought a separate Civil Court summary non-payment proceeding against rent-regulated residential tenants wherein warranty of habitability claims were properly asserted as a defense. Such claims would also be available to any residential tenants in any summary proceeding commenced against them; however, such a defense is not available to commercial tenants in any event and such proceeding is not available to a receiver where the persons in possession have failed or refused to attorn.