Per Curiam.
Judgment unanimously affirmed, with $25 costs. The case of 14 Second Ave. Realty Corp. v. Anne Steven Corp. ( 16 A.D.2d 751, affd. 12 N.Y.2d 919), relied upon by the court below, dealing as it does with the vendor-vendee situation is not determinative of the issues herein. The significant fact in this case is that plaintiff landlord made an unequivocal election not to recognize defendant's lease or its status as a tenant and therefore is precluded from recovering use and occupation, since a landlord-tenant relationship is a sine qua non to such an action. ( McFarlan v. Watson, 3 N.Y. 286; Rasch, N.Y. Law of Landlord and Tenant, § 105.)
The suggestion in Christatos v. United Cigar Stores Co. ( 144 Misc. 322, citing City of New York v. Fink, 130 Misc. 620) that an owner may recover for use and occupation from a subtenant even in the absence of such a relationship is not supported by the latter case, nor by the established law on this subject.
Concur — GULOTTA, PETTE and GROAT, JJ.
Judgment affirmed, etc.