I respectfully dissent. The case of Article Ten Props, v Kocak (164 AD2d 448), decided by this Court in 1990 and never overruled, and relied upon by Supreme Court here, requires affirmance in this case. In my view, the majority’s apparent requirement of an ouster in every case ignores the plain language of RPAPL 541.
*578Ordered that the order and judgment entered December 23, 1992 is modified, on the law, with costs to plaintiff, by deleting the second, third and fourth decretal paragraphs and substituting therefor a provision which denies defendant Ronald L. Sellers’ cross motion for summary judgment, and, as so modified, affirmed.
Ordered that the appeal from order entered December 13, 1991 is dismissed.