Stathoudakis v Jormeg, Inc.
Annotate this CaseDecided on December 19, 2008
District Court of Nassau County, First District
Nicholas Stathoudakis & Irene Stathoudakis, Petitioner(s)
against
Jormeg, Inc., DANO'S PIZZA, THOMAS DVORAK, "JOHN DOE," "JANE DOE" & "XYZ CORP.," Respondent(s)
SP 004904/08
Law Offices of John e. Halkias, PLLC, Attorneys for Petitioner, 455 Bay Ridge Parkway, Brooklyn, New York 11209, (718) 238-7444; Finkelstein & Feil, LLP, Attorneys for Respondent, 666 Old Country Road, Suite 210, Garden City, New York 11530, (516) 280-3660.
Scott Fairgrieve, J.
The motion by respondents to dismiss this non-payment petition is granted.
The facts involved here are simple and uncontested. The petitioners/landlords and tenants/respondents entered into a lease of commercial premises located at 235 Robbins Lane, Syosset, New York, on September 11, 1996. The rent was $6,000 per month. The lease expired on September 30, 2006. Respondents remained in possession of the premises thereafter and paid rent for only a short time after the expiration of the lease before ceasing to pay any rent at all. On August 26, 2008, the petitioner served a "5 DAY NOTICE TO TENANT" upon the respondents seeking back rent. Petitioners commenced this non-payment proceeding by service of a Notice of Petition and Petition upon the respondents on September 25, 2008, seeking possession of the premises and $132,000 in back rent.
Respondents argue that this proceeding is defective because a non-payment proceeding is improper in that, pursuant to Real Property Law §232-c, the respondents became month to month tenants upon the expiration of the lease and that the only remedy open to petitioners is a holdover proceeding which seeks reasonable use and occupancy. They further argue that petitioners failed to serve the 30 day notice of termination required by Real Property Law §232-b to terminate a month to month tenancy. The petitioners argue, without citing any case or statutory authority whatsoever, that a non-payment proceeding is in fact proper under these facts.
Real Property Law §232-c provides: [*2]
Where a tenant whose term is longer than one month holds over after the expiration of such term, such holding over shall not give to the landlord the option to hold the tenant for a new term solely by virtue of the tenant's holding over. In the case of such a holding over by the tenant, the landlord may proceed, in any manner permitted by law, to remove the tenant, or, 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 commencing on the first day after the expiration of such term.
Real Property Law §232[b] provides:
A monthly tenancy or tenancy from month to month of any lands or buildings located outside of the city of New York may be terminated by the landlord or the tenant upon his notifying the other at least one month before the expiration of the term of his election to terminate; provided, however, that no notification shall be necessary to terminate a tenancy for a definite term.
In 1400 Broadway Associates v. Henry Lee and Co. of NY, 161 Misc 2d 497, it was held that:
To permit petitioner to maintain a nonpayment proceeding under these circumstances, seeking payment at the lease rate would permit a landlord unilaterally to bind a tenant to payment at a rate predicated on a continuing agreement, even though there no longer was a meeting of the minds. Such a result would vitiate the intent of Real Property Law § 232-c.
In Krantz & Phillips, LLP. v. Sedaghati, 2003 WL 222778, the Appellate Term of the First Department cited 1400 Broadway Associates v. Henry Lee and Co. of NY with approval when it held:
The nonpayment petition was properly dismissed since the record establishes that the lease
agreement sued upon expired October 31, 2001 and landlord seeks rent for January and February
2002 purportedly due "pursuant to said agreement". As held by Civil Court, landlord's remedy is
limited to removal of the tenant and damages for use and occupancy (see, Jaroslow v. Lehigh
Valley Railroad Co., 23 NY2d 991, 298 N.Y.S.2d 999, 246 N.E.2d 757; Real Property Law
§ 232-c). Even assuming that a month-to-month tenancy was created following expiration
of the lease, there was no agreed upon rental for any month ensuing after tenant ceased paying
rent and no basis for holding tenant contractually liable for the rent reserved in the expired lease
(see, 1400 Broadway Associates v. Henry Lee & Co., 161 Misc 2d 497, 614 N.Y.S.2d 704).
(See also Jaroslow v. Lehigh Valley R. Co., 23 NY2d 991)
Finally, in a case virtually identical to the instant proceeding, the Court in Dashnaw v. Shiflett, 10 Misc 3d 1051(A) explained the law as follows: [*3]
The facts presented include that the Defendants paid rent for September 1999, which was after their lease expired on August 31, 1999. The Plaintiff asks this Court to hold that one month of paying rent creates a month-to-month tenancy for later months in which they did not pay rent. That is not the law. A month-to-month tenancy is determined anew monthly; if rent is accepted by the landlord for a month, the tenant has the right to remain in residence for that month. But the next month's tenancy depends upon paying rent again.
When there is no lease and no rent paid, there is no tenancy. New York's highest court, the Court of Appeals, directly addressed this in Matter of Jaroslow v Lehigh Valley Railroad Co, supra. Under facts showing that a 21 year lease expired and no rent was paid thereafter, the Court of Appeals affirmed the lower court's dismissal of a petition for rent arrears.
For the foregoing reasons, the motion to dismiss is granted and this non-payment proceeding is dismissed without prejudice to petitioners' right to serve notice pursuant to Real Property Law §232-b and thereafter commence a holdover proceeding seeking possession of the premises and reasonable use and occupancy.
The foregoing constitutes the decision and order of the Court.
District Court Judge
Dated:December, 2008
CC:Finkelstein & Feil, LLP
Law Offices of John E. Halkias, PLLC
SF/mp
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