Brooks v Elabed

[*1] Brooks v Elabed 2005 NYSlipOp 50624(U) Decided on April 26, 2005 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 26, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: PESCE, P.J., RIOS and BELEN, JJ.
2004-640 K C

Donna Brooks, Appellant,

against

Ahmed J. Elabed and ABDELHAFID MEKDAHI, Respondents.

Appeal by landlord from a final judgment of the Civil Court, Kings County (S. Goodheartz, J.H.O.), entered May 7, 2003, dismissing the petition.

Final judgment unanimously affirmed without costs.

Landlord instituted this commercial holdover proceeding predicated upon a notice of termination of an alleged month-to-month tenancy. The instant commercial lease, which terminated July 31, 2002, afforded tenants the option to renew for an additional five (5) years at a 5% increase each year. Where, as here, no particular method for exercising a right to renew is prescribed in a lease, a tenant may adopt any reasonable method at the end of the term to indicate that tenant elects to renew the
lease. Tenant's election may be implied from continuing in possession after expiration of the lease (see Foster v Stewart, 196 App Div 814 [1921]; Schwalben v Cholowaczuk, 75 Misc 2d 98 [1973]). Since the tenants herein not only remained in possession but tendered a check to landlord in the amount required under the renewal, the lower court's finding that the lease was renewed was supported by the evidence and, as a result thereof, its dismissal of the instant summary proceeding predicated upon the termination of an alleged month-to-month tenancy should be affirmed.
Decision Date: April 26, 2005