(dissenting). I would modify the judgment appealed from to the extent of affirming the declaratory judgment portion thereof, and remand the summary dispossess proceeding thereof to the trial court to make findings of fact.
*3071. The option to purchase.
The option agreement provided that: “So long as Tenant is in good standing, she shall have the Right For One (1) Year from date hereof to Purchase these premises”.
At the time the tenant attempted to exercise the option, she was not a tenant in good standing as she was in default in payment of the current rent. The current period was July 15 to August 14,1979; the rent was apparently due on August 1, 1979. The option was attempted to be exercised on August 14. The tenant said that she had mailed the check by August 14. Plaintiff landlord claims that it did not receive the rent check until August 30, 1979. In any event, the check was returned for insufficient funds. A bad check is not a payment at all. As payment of rent is obviously a very important — perhaps the most important — obligation of the tenant, I think a tenant who is in arrears in the payment of current rent cannot be deemed a tenant in good standing. In light of this, it is unnecessary to consider whether the trial court was right or wrong in its other grounds, both of law and fact, for declaring the attempted exercise of the option to be ineffective.
2. The summary dispossess proceedings.
The trial court wrote an extensive decision, which, however, appears to have been directed entirely to the declaratory judgment phase of the action, relating to the effectiveness or ineffectiveness of the attempted exercise of the option to purchase. The decision ends with a paragraph saying: “With respect to the holdover summary proceeding consolidated herewith, the Court will confer with the parties and their attorneys.”
The attorneys for the tenant declined the invitation to confer with the court. The judgment grants final judgment of possession to the landlord “by reason of the expiration of the term of the respondent’s lease and the respondent’s continuing in possession of the premises without the permission of petitioner after the expiration of said term”. I do not see any findings of fact on this point. As the term specified in the lease had clearly not yet expired, so that the Trial Justice must have held that the lease had been terminated before its specified expiration date, this phase *308of the case should be remanded to the trial court to make findings.
Carro, J. P., and Fein, J. concur with Milonas, J.; Lupiano and Silverman, JJ., dissent in separate opinions.
Judgment, Supreme Court, New York County, entered on May 21, 1981, reversed, on the law and the facts, without costs and without disbursements, and judgment granted in favor of defendant-appellant declaring that she timely exercised her option to buy; the summary holdover proceeding is dismissed and release of deposit made by appellant directed.