Carlo v Koch-Matthews

[*1] Carlo v Koch-Matthews 2016 NY Slip Op 26276 Decided on August 25, 2016 City Court Of Cohoes, Albany County Marcelle, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on August 25, 2016
City Court of Cohoes, Albany County

Tim Carlo and Kim Carlo, Plaintiffs,

against

Betty Koch-Matthews and Diana Matthews, Defendants.



SC-342-16/CO



Tim Carlo and Kim Carlo, Pro Se for Plaintiffs

Betty Koch-Matthews and Diana Matthews, Pro Se for Defendants
Thomas Marcelle, J.

Tim and Kim Carlo ("Carlos") brought a small claims proceeding against their former tenants Betty Koch-Matthews and Diana Matthews ("Matthews"). At trial the evidence established that the Carlos had rented the Matthews an apartment in the City of Cohoes. The parties had no written lease but had a month to month arrangement. Each month, the Matthews would tender the rent which was accepted by the Carlos. This arrangement continued for about seven years until the end of April 2016.

On April 30, 2016, via text message, the Matthews informed the Carlos that they would be moving out by May 1 [Exhibit 1]. The Matthews explained that "the only reason that the notice was short was because [their] closing date for the new house was moved quite a few times and [they] were never sure when it was going to be" [id.]. The Carlos responded that "New York State" required that tenants who rented month to month provide the landlord with a month's notice before vacating the premise. Consequently, absent the notice, the Carlos demanded that the Matthews pay May's rent. The Matthews took a contrary position; they maintained that since the parties "had no agreement [they] were free to move out at any time" and thus, they would not be remitting May's rent [id.].

At trial, the Carlos' based their claim upon Real Property Law ("RPL") § 232-b which provides in relevant part:

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 [*2]terminate

The question before the Court is whether RPL § 232-b imposes upon a tenant a mandatory requirement to give a month's notice to the landlord before terminating a month to month lease. The key statutory phrase is "may be terminated." A literal interpretation of the phrase would mean that RPL § 232-b is permissive; that is, a tenant "may" choose to terminate a lease by providing a month's notice. Under this permissive reading, RPL § 232-b would be a safe harbor for a tenant — meaning that compliance with the statute would afford a tenant complete comfort and security that the lease is terminated.

The alternative statutory interpretation would be that RPL § 232-b is a mandate. That is, a tenant may terminate the lease only if he provides a month's notice to the landlord. To interpret RPL § 232-b to be mandatory in nature, the Court would have to construct the statute to read either:

A monthly tenancy shall [may] be terminated by the tenant upon his notifying the other at least one month before the expiration of the term of his election to terminate orA monthly tenancy may be terminated by the tenant [only] upon his notifying the other at least one month before the expiration of the term of his election to terminate

Statutory interpretation begins with the statute's language (Yatauro v. Mangano, 17 NY3d 420, 426 [2011]). Here, the statute employs the word "may" as opposed to "shall." This language choice signifies that the Legislature intended RPL § 232-b's edict to be permissive and not mandatory.[FN1] Moreover, for the statute to be mandatory, the Court would need to supply language that the Legislature chose not to insert. In particular, neither the words "shall" or "only" appear in RPL § 232-b. What the Legislature did not place in the statute, the Court will not add — power to construe is not power to amend (see Sexauer & Lemke v. Burke & Sons Co., 228 NY 341 [1920]).

Construing RPL § 232-b to be permissive is not without issues. It could be argued that a permissive interpretation renders the statute without functional purpose. The argument, in essence, goes that if a landlord is without a remedy when the tenant violates RPL § 232-b, then the statute is impotent. No court should assume that the Legislature exercised its power in a futile or meaningless manner. Indeed to do so would be disrespectful to the Legislature and not in accordance with fundamental statutory interpretation principles (In re Christopher F, 260 AD2d 97, 100 [3d Dept 1999]; McKinney's Cons Laws of NY, Book 1, Statutes §144).

However, in drafting RPL § 232-b, the Legislature acted against a back drop of the common law which distinguished between a monthly tenancy and a month to month tenancy. Though this distinction is discussed at length later in the opinion, suffice to say for now, the distinction caused much confusion and left the manner of ending a month to month arrangement annoyingly obtuse. By enacting RPL § 232-b, the Legislature provided clarity to a murky area of law. In particular, the Legislature made the same rule for terminating a monthly tenancy as a month to month tenancy. Thus, RPL § 232-b altered the common law which is no small thing.

Further, the statute circumscribes a landlord's ability to require notice longer than a [*3]month. When the Legislature constricts the ability to contract, it has exercised power. Far better to find a purpose as the statute is written than to recompose the law by a court sprinkling a word here and there to create rights and burdens that a literal interpretation would not have permitted (see e.g., Standard Oil Co. of New Jersey v. United States, 221 U.S. 1, 99 [1911] [Harlan J., concurring in part and dissenting in part]).[FN2]

Normally, the preceding statutory analysis would have completed the case, since it was the only ground advanced by the plaintiffs for relief. If this case had been litigated by counsel, the Court would go no further. A court's role is not to hypothesize (and then decide) alternative legal theories not raised by counsel; rather, it is to decide the issues actually argued.

However, this case arises under the small claims statute where the Legislature has instructed the courts to do substantial justice (Uniform City Court Act § 1804). The small claims act allows people to enjoy the benefits of litigation in cases where economics would not justify retention of counsel and the accompanying elaborate and expensive pleading and motion practice. This case is a perfect example. The dispute is over $650 which means (under current market rates) that if a lawyer exceeded two or three hours on the case, the cost of counsel would consume the entire potential judgment.

In this case, substantial justice means, at a minimum, that the Court should explore all appropriate legal theories that could potentially afford plaintiffs relief despite only relying upon RPL § 232-b. Plaintiffs' theory is clear — the law, whether found in a statute or in common law rulings, entitles them to a month's notice before the tenants quit the lease. Therefore, the Court will consider common law rights.

New York common law differentiates between a monthly tenancy and a month to month tenancy. Although sounding similar, a monthly tenancy and a month to month are different terms with quite different meaning. A monthly tenancy has a fixed term and the tenancy ends even in the absence of notice; a month-to-month tenancy has an indefinite term and continues until terminated by notice (Adams v. City of Cohoes, 127 NY 175, 183-184 [1891]).

On the difference between the two terms, "New York cases are in some confusion" (Landlord and Tenant - Monthly Tenancy - Notice Necessary to Terminate, 26 Harv. L. Rev. 180, 180—181 [1912]). Indeed it has been noted that in many cases the "distinction in terms was not recognized account[ing] for some of the apparent disagreement in the opinions" (Earl Holding Corp. v. Glicker, 100 N.Y.S.2d 658, 661 [Civ Ct Bronx County 1950] [internal citations and quotations omitted]). Rather than engaging in an extensive expository adventure to review the confusion and inconsistency in applying terms in common law cases, the Court will simply restate the operative definitions of monthly tenancy and a month to month tenancy.

A monthly tenancy is really an implied contract. A monthly tenancy normally follows the expiration of a lease (a contract) between the parties. Under common law principles, once a lease expired, the landlord could eject or evict the tenant without notice; and concomitantly, the [*4]tenant could leave the property without notice to the landlord (Kennedy v. City of New York, 196 NY 19, 25 [1909]). This should be no surprise, after all the parties had expressly agreed to the ending date in the contract and thus, no further notice was needed.

However, despite the fact that the lease had expired and that relationship had ended, if the tenant offered another month's rent and the landlord accepted the rent, this offer and acceptance created a new contract. This new contract endured no more than the offer and acceptance permitted — one month. Thus, the new contract by implication expired at the end of the month at which time the tenant had the right to pack up and leave without notice and the landlord could evict the tenant without notice. Although the cycle of monthly payments may continue indefinitely, each acceptance and offer constitutes a renewed contract for one month. Such an arrangement was considered a monthly tenancy. Thus, the foundational common law cases note that a monthly tenancy is for a fixed term and can be ended without notice (see generally, Adams, 127 NY at 183; Ludington v. Garlock, 9 N.Y.S. 24, 27 [1890]).

In contrast, a month to month tenancy is founded in property rights rather than contract rights. Although the parties have agreed upon the amount of rent, they have failed to mutually assent to an ending date for the lease. Moreover, since a month to month tenancy is created where no valid prior agreement or lease for a definite term existed, no termination date can be implied from a prior contract.

Precisely because there is no agreement as to the tenancy termination date, each month either the landlord or the tenant has a right to continue their interest in the property and in the rental income respectively. The month to month tenancy may and can continue indefinitely. The English common law cases required that the estate interests could only be ended upon reasonable notice to the other party (Landlord and Tenant - Monthly Tenancy - Notice Necessary to Terminate, 26 Harv. L. Rev. at 180—81). To protect each party's property interest, New York adopted a rule of proportion; "[w]here the tenancy is from week to week, or month to month a week's or month's notice to quit must be given" (Anderson v. Prindle, 23 Wend. 616 [1840]; see also Klingenstein v. Goldwasser, 27 Misc. 536, 537 [App. Term 1899] [holding that where tenancy is for an indefinite term, one month's notice to quit to terminate the lease]).

At this juncture, the case circles back to the question of whether the arrangement between the Carlos and the Matthews was a monthly tenancy or a month to month tenancy. The parties agreed only on the amount of rent to be paid each month — $650. From the trial testimony, it was readily apparent that neither the Carlos nor the Matthews had contemplated when or under what conditions the lease would be terminated. This lack of definitive extended the lease and the parties' corresponding property interest for an indefinite period. Thus, the situation falls squarely within the definition of a month to month tenancy. Therefore, the Matthews had a duty to provide the Carlos a month's notice before quitting the lease.

The Carlos diligently obtained a new tenant at a rent of $650 per month on June 1, 2016. Consequently, under well-established common law principles, the Matthews owe the Carlos one month's rent (Boyar v. Wallenberg, 132 Misc. 116, 119 [Buffalo City Ct. 1928]).

ORDERED that the Defendants Betty Koch-Matthews and Diana Matthews pay the Plaintiffs Tim and Kim Koch $650.00, and it is further,

ORDERED that the Defendants Betty Koch-Matthews and Diana Matthews pay the Plaintiffs Tim and Kim Koch the filing fee in this matter of $20.00

The foregoing constitutes the Decision and Order of the Court.

Dated:August 25, 2016

Cohoes, New York

_____________________

Thomas Marcelle

City Court Judge Footnotes

Footnote 1:See Scalia and Garner, Reading Law: The Interpretation of Legal Texts §11 at p. 112 [West Pub. Co. 2012] (citing an example of a statute concerning notice to quit a lease that nearly mirrors RPL § 232-b to contrast how the words "may" and "shall" create either a mandatory or a permissive statute).

Footnote 2:If RPL § 232-b was mandatory, the Court would be obligated to determine if the Legislature intended RPL § 232-b to allow parties to commence a private cause of action to enforce the statutory mandate (compare Reed v. Ragsdale, 181 Misc 2d 773, 775 [Newark Vil. Ct. 1999] [noting that while RPL § 235-e is mandatory in nature, the law provides no sanctions for its violation] with RPL§ 235-f [9] (containing an explicit provision for the maintenance of a privative action)].