Avalonbay Communities, Inc. v Betts

[*1] Avalonbay Communities, Inc. v Betts 2004 NY Slip Op 50750(U) Decided on July 6, 2004 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 6, 2004
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS
PRESENT:DECIDED July 6, 2004 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS PRESENT : McCABE, P.J., RUDOLPH and ANGIOLILLO, JJ.
NO.2003-903 S C

AVALONBAY COMMUNITIES, INC., Respondent,

against

SHAMEKA BETTS, Appellant.

Appeal by tenant from a final judgment of the District Court, Suffolk County (C. Hackeling, J.), entered June 4, 2003, awarding landlord possession and the sum of $3,460.

Final judgment unanimously reversed without costs and petition dismissed.

Real Property Law § 232-c provides that the tenancy created by an acceptance of rent after the expiration of a lease term "shall be a tenancy from month to month commencing on the first day after the expiration of such term". Real Property Law
§ 232-b provides that a month-to-month tenancy outside the City of New York may be terminated by a landlord "by notifying the [tenant] at least one month before the
expiration of the term of his election to terminate". To be effective, the termination notice must terminate the tenancy at the expiration of the rental month (People ex rel Botsford v Darling, 47 NY 666 [1872]; Witherbee, Sherman & Co. v Wykes, 159 App Div 24 [1913]; Ferro v Lawrence, 195 Misc 2d 529 [2002]; Hunt v Hart, 188 Misc 534 [1947]).

In the instant case, it was stipulated that tenant's lease expired on September 24, 2002. Landlord claims that only a month-to-month tenancy arose thereafter and that it terminated the month-to-month tenancy by serving a notice on December 28, 2002 effective January 31, 2003. Assuming, as landlord contends, that only a month-to-month tenancy arose, the tenancy month ran from the 25th of the month to the 24th of the next month. Inasmuch as landlord's termination notice did not terminate the tenancy one month prior to the expiration of a tenancy month and did not terminate the tenancy on its expiration date, the notice was defective. Accordingly, the petition must be dismissed. We reach no other issue.
Decision Date: July 06, 2004