May 11, 1999
Appeal from the Civil Court, New York County, (Marcy Friedman, J.).
Hutton Ingram Yuzek Gainen Carroll Bertolotti, L. L. P. (Marc J. Schneider of counsel), for appellant.
Salzman Jaffe (Ira Salzman of counsel), for Hattie Haskins, respondent.
PRESENT: HON. STANLEY PARNESS, P.J., HON. WILLIAM P. McCOOE, HON. HELEN E. FREEDMAN, Justices.
Order entered April 28, 1998 (Marcy Friedman, J.) affirmed, with $10 costs.
In this nonpayment proceeding commenced in July 1997, it is not disputed that the arrears sought for the period March 1994 through December 1996 were discharged in bankruptcy by order of the Bankruptcy Court dated April 7, 1997. Landlord purports to seek "a possessory judgment and warrant of evieviction only". We agree that the proceeding cannot be maintained since there was no valid basis to serve a rent demand pursuant to RPAPL § 711 Acts. (2) for arrears which had previously been discharged. At the time a summary proceeding for nonpayment of rent is commenced there must be rent in arrears which has not been paid (2 Rasch's Landlord and Tenant, 4th ed., § 32:8). Our decision in 840 West End Assoc. v. World Wide Destinations Unlimited (NYLJ, April 5, 1991, at 27, col 3), where we held that a subsequent discharge in bankruptcy did not render unenforceable a pre-existing state court judgment of possession, is distinguishable on its facts.