Community Hous. Innovations, Inc. v McKee

[*1] Community Hous. Innovations, Inc. v McKee 2006 NY Slip Op 50025(U) [10 Misc 3d 1069(A)] Decided on January 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 9, 2006
Nassau District Court

Community Housing Innovations, Inc., Petitioner,

against

Rochelle McKee and Michael McKee, Respondents.



SP 5327/05

Scott Fairgrieve, J.

Respondents/Tenants move for an order, pursuant to CPLR 3211(a)(1) and (2),

dismissing the petition based upon the defense that the petitioner/landlord's "post-

termination acceptance of rent" vitiated the notice required by RPL 232-b terminating

the lease. Petitioner cross-moves for an order of granting summary judgment in its favor

and for an award of judgment of possession and warrant of eviction.

The respondents, month-to-month tenants, who rent 120 Liberty Boulevard, Apt. 1, Valley Stream, have their rent of $750.00 per month paid directly to landlord by Nassau County Department of Social Services (N.C.D.S.S.). They were apparently served a 30 day notice, dated August 30, 2005 terminating their tenancy on September 30, 2005.

Respondents contend that N.C.D.S.S. paid the rent for the months of September, October, and November of 2005. However, the rent checks were not cashed and were returned on or about December 7, 2005

The respondents assert that the petitioner's acceptance of rent paid on the respondent s' behalf for a sufficient duration after sending a termination of lease notice to the respondents and before bringing the petition in the instant case is sufficient to negate the one month termination notice. Since the petitioner did not return the checks promptly, respondents demands that the action be dismissed. [*2]

Petitioner counters that the September 2005 payment could be cashed because the tenancy had not terminated. On this point, petitioner is correct because payment may be accepted before termination of the lease. See, Freidman v. Conover, NYLJ, 9/30/88, p.21, col.2.

The October 2005 payment was received before the commencement of the first action which was filed on October 24, 2005. Said proceeding was dismissed because petitioner failed to file an affidavit of service. This check was not returned until on or about December 7, 2005. The November 2005 check was also returned in December of 2005.

Petitioner states that the November 2005 payment was mailed on November 1, 2005, and that:

The respondents have shown that the Department of Social Services mailed the November rent payment on November 1, 2005. Generally, mail may be presumed to reach the addressee within five days of mailing. CPLR 2103(b)(2). The court may assume that the November payment reached the petitioner before commencement of the instant proceeding. Along with the October rent, November's rent was returned, at the earliest, in early December, after this case was well underway, and probably only on the advice of counsel.

The Court disagrees with the above analysis and statement of petitioner that the second action was commenced on November 9, 2005. The affidavits of service filed with the court demonstrate that this action was commenced on November 22, 2005. Thus, the payment of November 2005 rent was received before commencement of this action and not returned until December 7 of 2005.

Retention of the rent from N.C.D.S.S. constitutes acceptance of rent from the tenant. See, Greenwich v. Gardens Assoc. v. Pitt, 126 Misc 2d 947, 484 NYS2d 439 (1st Dist, Nassau, 1984).

The retention of the rent checks received from N.C.D.S.S. for the months of October and November without returning same until December vitiated the 30 day notice and continued the landlord-tenant relationship. See, Gomez v. Haldas , 9/21/2004 NYLJ, at 19 (col. 3), Associated Realties v. Brown, 146 Misc 2d 1069, 554 NYS2d 975 (NY City Civ. Ct., 1990); Roxborough Apartment v. Becker, 176 Misc 2d 503, 673 NYS2d 814 (NY City Civ. Ct., 1998); Connecticut Investors Corp. v. Strasser, 14 Misc 2d 1061, 180 NYS2d 180 (App. Term 1st Dept., 1958).

Based upon the foregoing, the proceeding is dismissed without prejudice to renew. The petitioner's cross motion for summary judgment is denied.

So Ordered: [*3]

DISTRICT COURT JUDGE

Dated: January 9, 2006

CC:Nassau/Suffolk Law Services Committee, Inc.

Meyer, Meyer & Keneally, Esqs., LLP

SF/mp