Islands Heritage Realty Corp. v Joseph
Annotate this CaseDecided on April 28, 2011
District Court of Nassau County, First District
Islands Heritage Realty Corp., Petitioner
against
Germelia Joseph & Serge Mura Ulysse, Respondents
LT-002642-10
Albert Zafonte, Jr., Esq., Attorneys for Respondents,
215 Uniondale, Uniondale, New York 11553,
516- 505-7001;
Lubin & St. Louis, P.C., Attorneys for Petitioner,
229 Jericho Turnpike, Floral Park, New York 11001,
516-354-0149.
Scott Fairgrieve, J.
Respondent moves by order to show cause to vacate the judgment of possession and warrant of eviction arising from the stipulation of settlement dated June 6, 2010, because the parties created a new month-to-month tenancy commencing in October of 2010 for the monthly rent of $2,300.00.
Petitioner and Respondent executed a stipulation of settlement herein. The parties agreed that Respondent would pay $2,200.00 on June 15, July 15, August 15 and September 15, 2010, and vacate no later than September 30, 2010. [*2]
Respondent submitted to the Court the handwritten agreement dated September 9, 2010, executed by Pierre Charles Borga, agent of Petitioner wherein, he writes:
This 9 September 2010
Balance due to Pierre Borga for Court stipulation account $1500.00 expiring 9/30/2010
New agreement if possible will be:
Starting October 1st 2010
2,300.00Oct. 1st to Oct. 30, 2010
2,300.00Security Deposit
$4,600
Pierre C. Borga
Respondent submits proof of payment pursuant to this new agreement:
(a)Receipt no. 728885, dated November 5, 2010, issued by Mr. Borga for payment by Germelia Joseph for the sum of $1,500.00 toward the monthly amount due of $2,300.00 for the period of October 1, 2010 to October 31, 2010.
(b)Receipt no. 728909, dated December 20, 2010, issued by Mr. Borga to Germelia Joseph for payment of $800.00 reducing the balance due to zero for the period of October 1, 2010 to October 31, 2010.
Petitioner contends that the foregoing does not constitute a new month-to-month tenancy. Petitioner writes in the affidavit of Mr. Borga, dated March 24, 2011:
I further understand that Respondent is trying to say that I agreed to a new month to month tenancy, commencing October 1, 2010, at a monthly rent of $2,300.00. This is not true. Back in July 2010, Respondent's new attorney made contact with my attorney to discuss the possibility of a new tenancy with Respondent. I categorically refused, because Respondent owed me a lot of money in past due rent (over $13,000.00 as of April 2010) and I did not want to deal with Respondent any further.
Petitioner further argues in Mr. Borga's affidavit that even if a new tenancy was created Respondent failed to fulfill the terms and conditions of the new agreement.
Even assuming that a new tenancy was created, Respondent has not fulfilled these new terms and conditions. First, Respondent would have had to pay a security deposit of $2,300.00. This was never done. Second, from October 2010 to January 2011, Respondent would have paid FOUR (4) months at $2,300.00 a month for the total sum of $9,200.00. Respondent has produced no records [*3]that such payments were made. In fact, between the amount of the Stipulation and the supposed amount due under the alleged new tenancy, Respondent would have paid a total of $18,000.00 [$8,800.00 - Stipulation + $9,200.00 - alleged new tenancy)]. The records show that Respondent never paid such sum of money. Therefore, even assuming a new tenancy, Respondent would have failed to comply.
The Court rejects Petitioner's arguments that a new month-to-month tenancy was not created by the foregoing. The evidence clearly demonstrates that the parties created a new tenancy by Petitioner accepting rent for October of 2010 in the sum of $2,300.00.
Petitioner must commence a new proceeding to evict Respondent in the event of a nonpayment for a month-to-month tenancy. See Residential Landlord Tenant L. In NY, Sec. 12:12, wherein the following appears:
A month-to-month tenant is a tenant who does not have a possessory interest which, by lease or statute, extends beyond a single month. A landlord cannot maintain a nonpayment proceeding against a month-to-month tenant for rent which accrues after the lease expires and after the month-to-month tenant stops paying rent. The landlord's sole remedy is to bring a holdover proceeding for the fair and reasonable value of past and present occupancy. The landlord must serve a RPL § 232-a notice of termination at least 30 days before expiration of the monthly term as a condition precedent to bringing a holdover proceeding. 1400 Broadway Associates v. Henry Lee and Co. of NY, Inc., 161 Misc 2d 497, 614 N.Y.S.2d 704 (NY City Civ. Ct. 1994); Krantz v. Phillips, LLP v. Sedaghati, 2003 NY Slip Op. 50032(U), 2003 WL 222778 (NY App. Term 2003); Licht v. Moses, 11 Misc 3d 76, 813 N.Y.S.2d 849 (App. Term 2006); Ramos v. Ferderline, 1/16/2008 N.Y.L.J. 28, col. 1 (Civ. Ct. Kings Co.).
. . .
If a landlord of a non-New York City month-to-month tenant seeks to evict the tenant as a holdover, the landlord must give the tenant a one-month termination notice NY Real Prop. Law § 232-a, or, in New York City, a 30-day termination notice NY Real Propr. Law § 232-b.
Acceptance by Petitioner of the $2,300.00 for October of 2010 pursuant to the handwritten statement of Mr. Borga created a new month-to-month tenancy. See Logan v. Johnson, 34 AD3d 758, 825 N.Y.S.2d 242 (2nd Dept 2006), wherein the court held:
Despite having an option contract with the defendant to purchase the premises during a portion of the holdover period, a month-to-month tenancy was created when, upon holding over, the plaintiff paid and the defendant accepted the agreed-upon monthly rent of $1,500 for a number of months (see Real Property Law § 232-c; Matter of Jaroslaw v. Lehigh Val. R.R. Co., 23 NY2d 991, 298 N.Y.S.2d 999, 246 N.E.2d 757; 2955 Shell Assoc. v. Kayani, 234 AD2d 287, 651 N.Y.S.2d 72; Matter of Joyous Holdings v. Volkswagen of Oneonta, 128 AD2d 1002, 1003, 513 N.Y.S.2d 841]). [*4]
Likewise, in International Business Machines Corp. v. Joseph Stevens & Co., L.P., 300 AD2d 222, 754 N.Y.S.2d 233 (1st Dept 2002), the court held that retention of respondent's check created a month-to-month tenancy:
Petitioner's receipt and retention of defendant's January rent check was properly found to constitute "acceptance" of rent sufficient to create a month-to-month tenancy, especially since plaintiff deposited the check and made no attempt to refund the payment to defendant until several weeks after its agent had received it, after defendant raised the defense in an eviction proceeding that a month-to-month tenancy had been created.
Based upon the above, Respondent's order to show cause is granted. The judgment of possession, dated January 11, 2011 and warrant, dated January 27, 2011, are vacated. This summary proceeding is dismissed.
Petitioner may commence a new summary proceeding.
So Ordered:
/s/ Hon. Scott Faigrieve
DISTRICT COURT JUDGE
Dated:April 28, 2011
CC:Lubin & St. Louis, P.C.
Albert Zafonte, Jr., Esq.
SF/mp
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