Claim of Aragona v. Great Atlantic & Pacific Tea Co. , 400 N.Y.S.2d 594 ( 1977 )

Cross appeals from an order of County Court, Albany County, entered October 21, 1976, which reversed a judgment of the Justice Court of the Town of Colonie, in a summary proceeding, awarding petitioners $70,750 and possession of the premises, dismissed the petitions and directed that the tenant provide an undertaking in the amount of $200,000 to secure reserved rent. For the reasons stated in the opinion of Judge Clyne, we affirm so much of the order entered thereon as dismissed the petitions. We do not agree, however, with the conclusion that respondent should furnish an undertaking, and the order should be modified accordingly. Upon completion of the shopping center, with the required number of tenants, as provided in the lease in question, petitioners would be entitled to recover the reserved rent or rent withheld by the tenant while petitioners were in default. It is this reserved rent which the County Court sought to secure by the undertaking. The tenant’s liability, however, is nonexistent until petitioners complete the required performance and, thus, the tenant should not be liable on a bond either (see La Rocco v Penn Cent Transp. Co., 29 NY2d 892). It would appear that by dismissing the summary proceedings the County Court lost jurisdiction over the tenant. Order modified, on the law and the facts, by striking so much thereof as requires respondent to furnish an undertaking, and, as so modified, affirmed, without costs. Koreman, P. J., Greenblott, Main, Mikoll and Herlihy, JJ., concur.