Matter of Jovana Spaghetti House v. Heritage Co. of Massena

In Matter of Jovana Spaghetti House v. Heritage Co. of Massena, 189 AD2d 1041 [3d Dept 1993], the court sustained "self-help" pursuant to a lease that provided as follows: "landlord shall have the right to . . . re-enter the Premises and remove tenant . . . by any suitable action or proceeding at law or otherwise." In Jovana the landlord reentered the premises after the lease terminated due to the tenant's breach of a condition subsequent. Interestingly, Jovana is cited in AmJur 2d, Landlord & Tenant 829 "Under the 'English rule,' a landlord need not use legal process to expel from the premises a tenant who has no right to continue in possession as long as the landlord uses only reasonably necessary force. A variation of the rule permitting the landlord's self-help allows the landlord to gain possession from an overstaying tenant peacefully, but requires resorting to legal process if force would have been necessary [footnote 2 referenced here]. Most common, however, is the modern rule that a landlord entitled to possession must resort to the remedy that the law provides to secure the leased premises when the tenant refuses to surrender them. However, some jurisdictions, viewing the landlord's statutory remedy as merely cumulative, have not abolished the common-law remedy of self-help." Jovana is cited in footnote 2. As noted in the text, most jurisdictions do not allow "self-help."