Gagnier v Alexis

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[*1] Gagnier v Alexis 2006 NY Slip Op 50328(U) [11 Misc 3d 1061(A)] Decided on March 9, 2006 Nassau District Court Fairgrieve, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 9, 2006
Nassau District Court

Trevor Gagnier, Petitioner,

against

Augustine Alexis, "JOHN DOES 1-3" and JANE DOES 1-3", Respondents.



SP 351/06

Scott Fairgrieve, J.



Petitioner has commenced this holdover proceeding based upon the claim that Augustine Alexis is a licensee and not a tenant. Respondent occupies 2134 Baylis Avenue, Elmont, New York. A 10 day notice pursuant to RPAPL Section 713(7) was served upon respondent on or about December 22, 2005.

The respondent owned the said premises, but experienced financial difficulty. As a result, respondent conveyed the premises to Everald Walters on or about March 3, 2005. Thereafter, the property was conveyed by Everald Walters to JT Jamaica Equities LLC on September 20, 2005. Then, JT Jamaica Equities LLC conveyed the premises to the petitioner Gagnier herein on December 14, 2005. The petitioner Trevor Gagnier is the owner of JT Jamaica Equities LLC.

Respondent contends that a landlord and tenant relationship exists between the parties herein. Thus, a 30 day notice to terminate is required. Petitioner contends that no landlord tenant relationship exists and that a 10 day notice to quit pursuant to RPAPL Section 713(7) is sufficient.

Respondent claims that the September 28, 2005, letter sent by petitioner Trevor Gagnier to respondent confirms a landlord tenant relationship; this is denied by petitioner. The September 28, 2005 letter states in full: "Thank you for having stopped by my offices this past week to discuss matters. I [*2]appreciate your efforts to come see me personally. As we had left things you were going to speak with your wife and advise me of your intentions and we had discussed the possibility of you remaining in the house for a short time in order to find suitable accommodations.""I am willing to allow you three months to remain in the house however this would be pursuant to certain conditions.""1/The September 2005 rent is overdue and payable in the amount of 3860.91 and must be paid promptly. This rent is based upon the actual monthly mortgage against the premises.""2/The rent must be paid by cash or certified check on the first of each month for the three month time period. As such October 2005 rent is just about due.""3/House must vacant on or by December 31, 2005.""4/I be given access to see and show the house upon reasonable notice to you.""In the event you have decided to move instead please let me know so I can plan accordingly."

Based upon a clear reading of the above letter, this Court holds that a landlord and tenant month to month tenancy is confirmed. The September 28th letter clearly discusses the need to promptly pay the September 2005 rent of $3,860.91.

In this situation a month to month tenancy is established requiring a 30 day notice to terminate be served upon respondent. The collection of rent is key to the establishment of the month to month tenancy. Petitioner is estopped by his own conduct which confirms in writing that rent is being sought which is the basis of a landlord tenant relationship. See 28 Mott St. Co. v. Summit Import Corp., 34 AD2d 144, 310 NYS2d 93 (1st Dep't 1970), order aff'd 28 NY2d 508, 319 NYS2d 65. See Landlord and Tenant Practice in New York, Section 2:33 which states: In addition to exclusive possession of a specified portion of property, two other elements are pivotal to the creation of a lease or tenant:duration or "term"; andthe consideration or "rent."

In Rasch's Landlord & Tenant, Fourth Edition, Hon. Robert F. Dolan, Section 4:11 states: "The test of the distinction between a lease and a license depends, substantially, upon [*3]the question whether or not the contract or authority granting the right to enter upon the land of another confers upon the person so entering an interest in the land, so as to affect the other in the use of his land.""The central distinguishing characteristic of a lease is the surrender of absolute possession and control of property to another for an agreed-upon rental."

See also Nextel of New York, Inc. v. Time Management Corp., 297 AD2d 282, 746 NYS2d 169 (2nd Dep't 2002); Ark Bryant Park Corp. v. Bryant Park Restoration Corp., 285 AD2d 142, 730 NYS2d 48 (1st Dep't 2001).

CONCLUSION

A landlord and tenant relationship existed between the parties. In the case at bar, a month to month tenancy was created which required a 30 day notice to terminate the relationship. Thus, the 10 day notice is ineffective to terminate and this proceeding is hereby dismissed.

So Ordered:

DISTRICT COURT JUDGE

Dated:March 9, 2006

CC:Jay A. Marshall, Esq.

Joan Forrester, Esq.

SF/mp