In granting the stay based upon "another action pending" (CPLR 3211[a][4]), the IAS court relied entirely on a holdover proceeding entitled NRP LLC II v. El Gallo Meat Market, Inc. (index No. 53395/00), understood to be pending in the Landlord-Tenant Part of Civil Court, New York County. Plaintiff asserts in its responding brief herein that Judge Acosta dismissed that proceeding on July 27, 2000, and defendants fail to refute or even address that assertion in their reply brief. With equal diffidence, plaintiff has not provided this Court with a copy of Judge Acosta's dismissal order, even though it filed a supplemental record. Evidently the litigants never apprised the IAS court of this development during the four-month interval prior to the orders of November 2000.
We express no opinion as to whether the action pending between these parties and others in Supreme Court, Bronx County, could provide the predicate for a stay. Accordingly, we remand the matter to provide the parties and the IAS court an opportunity to revisit and reconsider this issue in light of the fact that the supposed prior action on which the stay now rests may not have been in existence at the time.
Notwithstanding our remand, we vacate the use and occupancy payments directed by the IAS court. The right to recover reasonable interim use and occupancy here rests exclusively with the landlord because it is derived solely from a landlord's statutory right to a final award of such relief (Real Property Law § 220). A landlord-tenant relationship is the sine qua non for this remedy (see, 14 Second Ave. Realty Corp. v. Steven Corp., 16 A.D.2d 751, affd 12 N.Y.2d 919). In this ejectment action, plaintiff is an out-of-possession tenant claiming a superior possessory right to the supermarket premises under a long-term lease; defendants collectively claim possession by reason of a disputed (allegedly forged) assignment and lease from the landlord, and their alleged (and also disputed) full performance of a purchase arrangement with plaintiff.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.