Bankrupt Tenant Can Be Evicted

[Anna]

The Appellate Division affirmed AT and HC decisions that the LL cannot collect the back rent discharged in bankruptcy but can still evict the tenant.

Pari Dulac, Petitioner-Respondent,
v.
Robert Dabrowski, Respondent-Appellant.
2969
Supreme Court, Appellate Division, First Department, New York
Decided on February 26, 2004

Mazzarelli, J.P., Andrias, Saxe, Lerner, JJ.

APPEARANCES OF COUNSEL

Meryl L. Wenig

Robert Grimble

Order of the Appellate Term of the Supreme Court, First Department, entered on or about February 14, 2003, which reversed the order of the Civil Court, New York County (Bruce Scheckowitz, J.), entered May 14, 2001, and denied respondent tenant's motion to dismiss the petition and granted petitioner landlord's cross motion to restore the proceeding to the trial calendar, unanimously affirmed, without costs.

The Appellate Term correctly determined that its decision in Stahl Broadway Co. v Haskins (180 Misc 2d 705) should not be followed. Federal courts have rejected Stahl's reasoning and have held that a bankruptcy discharge shields debtors from actions to collect the debt, but not from other remedies (see cases cited infra). Although a debtor's debt for rental arrears may be personally discharged in bankruptcy, the underlying debt is not extinguished. Hence, the discharge in bankruptcy is not the equivalent of payment and does not, under federal bankruptcy law, prevent a landlord from evicting a tenant by reason of nonpayment. The landlord may pursue any remedy to which it is entitled under state law for breach of the tenant's obligation to pay rent, except a remedy against the debtor personally to collect the money due (see e.g. In re Robert Dabrowski, 257 BR 394 [SD NY 2001]; United States v Alfano, 34 F Supp 2d 827, 841 [ED NY 1999]; In re Touloumis, 170 BR 825 [SD NY 1994]; In re Hepburn, 27 BR 135 [ED NY 1983]).

Where, as here, the landlord is not responsible for DHCR's delay in determining that rent arrears existed, the landlord may not, based on the delay, be precluded from instituting a non-payment proceeding to recover possession.

We have considered respondent's other arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: FEBRUARY 26, 2004
CLERK
N.Y.A.D. 1 Dept. 2004.
Dulac v Dabrowski
END OF DOCUMENT