Opinion
SP1718/08.
Decided on June 23, 2008.
Petitioner-Landlord, Beverly Timothy commenced this holdover proceeding to recover possession of the subject premises from Respondent-Tenant, Michele Matison. Respondent moves to dismiss the petition in lieu of answering upon the grounds of Landlord's failure to state the facts upon which the special proceeding is based, through defense of documentary evidence, and by lack of subject matter jurisdiction.
William D. Friedman, Esq., Attorney for Petitioner, New York.
Nassau/Suffolk Law Services Committee, Inc., Attorney for Respondent, One Helen Keller Way, New York.
REPRESENTATION:
BACKGROUND
The parties at bar are subject to a written lease signed by the Petitioner's assignor, Victor Marmol, and the Respondent. The lease was assigned to the Petitioner in connection with her purchase of the subject property from Mr. Marmol at some time in 2006. The beginning of the term of the lease began on January 1, 2003 and was designated to end on December 31, 2003. The Section 8 lease clearly contains a provision that "the renewal term shall be for successive one-year terms." Since the original signing of the lease, the Respondent continues to maintain residency of the subject premise. Not until February 26, 2008 did Petitioner serve Respondent with notice of termination of the initial 2003 lease. Both parties agree that Petitioner has accepted rental payments made by Nassau County Department of Social Services, hereinafter referred to as, NCDSS, on behalf of Respondent well beyond the December 31, 2007 termination date.
DISCUSSION
The issue being considered by this Court is whether Petitioner is permitted to terminate the lease when she has continued to accept and retain rental payments from NCDSS well beyond the December 31, 2007 termination date of the subject lease.
Respondent contends that since the original lease was signed between Respondent and Assignor, Mr. Marmol, the parties have continued to renew the lease automatically through Mr. Marmol's and now Petitioner's acceptance of rent beyond the expiration term of the lease. Therefore, Respondent asserts that given the pattern of renewing the lease that has developed between the parties, Petitioner's acceptance of the 2008 payments constitutes a renewal of the Landlord-Tenant relationship. Respondent bases her argument on New York law which clearly states that when a tenant continues to maintain exclusive possession of the premise there is an implied continuance of tenancy subject to the same conditions and terms as the original lease between the Landlord and Tenant, City of New York v. Penna. RR Co., 37 NY2d 298, 300; State Farm Fire Cas. Co., v. Firmstone , 9 AD3d 812, [3rd Dept 2004]; McClennan v. Brancato Iron and Fence Works, 282 AD2d 722, 724 [2nd Dept 2001]; New Country Dev'mt Group v. Demitasse, 278 AD2d 728, [3rd Dept. 2000]; Lakeside Plaza, Inc. v. Impala Press, 237 AD2d 334, [2nd Dept 1997]; 1 Dolan, Rasch's Landlord and Tenant-Summary Proceedings, § 10:2, at 448 [4th Ed].
In addition, Respondent maintains that Section 8 subsidy payments are considered payments of rent, thereby, Landlord's acceptance and retention of rent beyond the termination date of the lease is a waiver of the Landlord's rights to terminate the lease. ( Greenwich Gardens Associates v. Pitt, 126 Misc 2d 947, 955 [Nassau Dist Ct 1984]; Youth Action Homes II HDFC v. Ash, 8/7/2002 N.Y.L.J 21, [col. 1]).
In her defense, Petitioner argues that the subject lease is not an ETPA lease and therefore is not subject to an automatic renewal of the initial term of the lease. ( citing, Rosario v. Diagonal Realty, LLC , 8 NY3d 755). While, the Petitioner is correct that the subject lease is not an ETPA lease, it remains uncontested that Petitioner continued to accept and retain rental payments made by NCDSS well beyond the December 31, 2007 termination date. As established, such acts are considered an affirmative approval on behalf of the Landlord to renew the initial term of the lease given the renewal provision provided in the lease.
According to 1 Dolan, Rasch's Landlord and Tenant-Summary Proceedings, § 10:1, at 446 [4th Ed], "if the landlord shall accept rent for any period subsequent to the expiration of such term, then, unless an agreement either express or implied is made providing otherwise, the tenancy created by the acceptance of such rent shall be a tenancy from month to month. . . ." Therefore, Petitioner's acceptance of Respondent's payments of rent beyond the termination date of December 31, 2007 is considered affirmative approval on part of the Petitioner of an extension of the initial lease for the year of 2008.
RPL § 232-c provides that a month-to-month tenancy is only created in the absence of either an express or implied agreement, when the landlord continues to accept rent from a holdover tenant for any period subsequent to the expiration of a lease. However, in the case at bar, the parties expressly agreed in the written lease that the renewal term for the lease shall be for successive one year terms. Furthermore, a lease that contains a provision for an automatic renewal does not convert into a month-to-month tenancy. The only way a Landlord can terminate such a lease is by proof of good cause, Numme v. Lemon, 191 Misc 2d 133 (NY Sup App Term 2002). Therefore, as a result of the parties expressly providing in the lease for an automatic renewal of the lease for the duration of a year, as well as Petitioner's failure to provide good cause for terminating the subject lease, Petitioner's acceptance of Respondent's payment of rent created a term of years tenancy, not a month-to-month tenancy.
Furthermore, the written lease at bar is not subject to the Statute of Frauds because it can be performed to completion within one year from its creation date of January 1, 2008 to its termination date of December 31, 2008. Genl. Ob. Law § 5-701.
DECISION
This Court holds that Petitioner's acceptance of rental payments made on behalf of Respondent by NCDSS in the early part of 2008 constitutes as acceptance of rent and a waiver of Petitioner's rights to terminate the lease. As a result, Respondent's lease was renewed for the year of 2008.
Therefore, Respondent's motion is granted and the petition is dismissed.
So Ordered: