The issues to be decided in this holdover proceeding are whether the tenant is a month to month tenant and whether her alleged oral agreement with the predecessor landlord, that she could remain in her premises until she "wished to vacate", was the equivalent of a life tenancy that is not voided by the Statute of Frauds.

The petitioners contend that the respondent is a month to month tenant whose tenancy expired upon the service of a 30 Day Notice of Termination and that her oral agreement does not survive the Statute of Frauds and, therefore, cannot be enforced. Petitioners have moved for summary judgment.

According to the statements made by the respondent in her affirmation in opposition to petitioners' motion, she has resided in the subject premises, located at 5416 14th Avenue, Brooklyn, New York 11219, Ground Floor, for 23 years. She claims to have had an oral agreement with the prior owner, as well as the current owners, who were formerly tenants before they purchased the house from the prior owner. The "agreement" was that she could stay in her [*2]apartment for as long as she wishes, provided she pays periodic rental increases as determined by the "agreement".

Petitioners purchased the two family house in or about June 2004. Thereafter, respondent, her mother (who passed away in January 2007) and Chaim Halberstam had "numerous oral discussions" about remaining in the apartment as before and a $500 rent increase that he requested. After more negotiations, "[p]etitioner, my mother and I entered into an oral lease agreement, the terms of which included a sizable rent increase....commencing September 2004, with the understanding that my mother and I could remain in the apartment until we wished to vacate, with periodic rental increases..." (¶ 8) The agreement was subsequently modified with respect to the rent to the extent that it would increase by $100 per year until it reached $1800 per month. In 2007, approximately three months after the passing of respondent's mother, petitioners asked the respondent to vacate her premises. As described more fully below, the parties then starting sending each other written communications in this regard.^[FN1]

On February 25, 2009, the respondent was served with a 30 Day Notice to Terminate advising her that the petitioners elected to terminate her tenancy held under a monthly hiring on March 31, 2009 and requesting respondent to vacate the premises by that date. In April 2009, the petitioner served the Petition and Notice of Petition.

The matter first appeared on the calendar on April 15, 2009. Respondent then made a pre-answer motion to dismiss which was denied in a Decision/Order by Judge Ofshtein on July 14, 2009 and the matter was adjourned to August 19, 2009 for trial. The respondent was directed to file an answer by August 7, 2009. On October 9, 2009, Judge Ofshtein denied petitioners' motion to strike the respondent's jurisdictional defenses and set the matter down for traverse and trial on October 15, 2009. After a hearing on November 9, 2009, Judge Chin overruled traverse. The instant motion by the petitioner appeared on the calendar on December 18, 2009. It was thereafter adjourned on consent to January 27, 2010, February 17, 2010 and finally March 9, 2010 for argument before the Court.

Real Property Law [RPL] §232 Duration of certain agreements in New York

An agreement for the occupation of real estate in the city of New York, which shall not particularly specify the duration of the occupation, shall be deemed to continue until the first day of October next after the possession commences under the agreement. [*3]

General Obligations Law [GOL] §5-701 Agreements required to be in writing [in relevant part]

a. Every agreement, promise or undertaking is void, unless it or some note or memorandum thereof be in writing, and subscribed by the party to be charged therewith, or by his lawful agent, if such agreement, promise or undertaking:

1. By its terms is not to be performed within one year from the making thereof or the performance of which is not to be completed before the end of a lifetime;

GOL §5-703

A contract for the leasing for a longer period than one year, or for the sale, of any real property, or an interest therein, is void unless the contract or some note or memorandum thereof, expressing the consideration, is in writing, subscribed by the party to be charged, or by his lawful agent thereunto authorized by writing.

The thrust of respondent's argument, in defense of petitioner's allegation that she is a month to month tenant whose tenancy has been terminated by service of a thirty day notice, is that she had an oral agreement with the petitioner's predecessor (now deceased), which she claims was thereafter assumed by the petitioner, that she could remain in the subject premises until she "wished to vacate". Respondent takes the position that such language removes her oral agreement from within the strictures of the Statute of Frauds because it is akin to a "lifetime" term and such agreements can be completed within one year, since the respondent could die within that year.

Notwithstanding the myriad of cases submitted by both parties and read by the Court, the matter boils down to two decisions strongly relied on by the respondent for the proposition that her agreement was for a "lifetime" and therefore not barred by the Statute of Frauds: City of New York v. Heller, 127 Misc 2d 814, aff'd 131 Misc 2d 485 (AT 1) and Garner v.Gerrish, 63 NY2d 575.

In Heller, the respondent tenant, and his then living brother, entered into an oral agreement in 1980 with the director of the Bureau of Property Management, Division of Real Property of the City of New York to vacate one of two suites they occupied in the premises that had been previously purchased by the city for condemnation purposes. Upon vacating one suite they could remain in the other at a fixed rent until both of them died. The respondents had become month to month tenants when the city purchased the building in 1965. In 1969, the city was awarded possession of the said premises but due to fiscal problems could not go forward with its initial plans, thus the court issued a stay and allowed the occupants to remain in their apartments provided they continued to pay their use and occupancy. In May 1984, the petitioner served a 30 day notice on the respondent claiming that he is a month to month tenant and refused to pay a proposed rental increase. In his defense, the respondent raised his oral lease which [*4]petitioner argued was barred by the Statute of Frauds.

Addressing the issue of the Statute of Frauds, the court began with a recitation of the sections of the GOL as set forth above. It then went on to state the following:

The statutory language makes clear that a writing is required where performance is for longer than one year. However, where a contract is capable of being performed within a year, it does not fall within the strictures of section 5-701(a)(1). (Citations omitted) The controlling words here are capable of'. Thus even if performance extends beyond a year, if it was capable of performance within a year measured from the date of the agreement, the Statute of Frauds does not require a writing. Similarly, where an oral lease could be construed to be for a period less than a year, it does not fall within section 5-703(2). (Citation omitted)

In determining whether the oral contract is within the prohibition of the Statute of Frauds, it is the endurance of the defendant's liability, not the plaintiff's, that is the deciding factor. (Citations omitted) In the cases before me, respondent is an individual whose lifetime is finite and capable of enduring less than a year. [ ] A lifetime can be shorter than a year. Hence, this lease was capable of performance within one year of the making of the agreement. Where a contract can be so construed, it is free of the requirement set out by General Obligations Law §§ 5-701(a)(1) and 5-703(2).

Although the court held that the oral agreement between the agent of the city and the respondent was not invalid for failure of being reduced to a writing, the Administrative Code of the City of New York prohibited the agent from leasing the premises for a period in excess of five years from the date of the agreement (July 1980) and, therefore, the lease would terminate on July 31, 1985. Since the petitioner commenced the proceeding in June 1984, the court dismissed the proceeding as premature.^[FN2]

In Gerrish the respondent and the owner of a house entered into a written lease on a printed form that required them to fill in the blanks, including the beginning and ending dates of the duration of the respondent's tenancy. The agreement was entered into in 1977 and when the owner of the house died in 1981 the executor of the estate sought to evict the Gerrish. Relevant here was the language used to describe when the lease will terminate: "Lou Gerrish has the privilege of termination [sic] this agreement at a date of his own choice".

The issue was whether a lease which grants the tenant the right to terminate the agreement at a date of his choice creates a determinable life tenancy on behalf of the tenant or [*5]merely established a tenancy at will.

Deciding in favor of the respondent, the Court of Appeals held that the lease "grants a personal right to the named lessee, Lou Gerrish, to terminate at a date of his choice, which is a fairly typical means of creating a life tenancy terminable at the will of the tenant (Citations omitted). Thus the lease will terminate, at the latest, upon the death of the tenant. ***** In sum, the lease expressly and unambiguously grants to the tenant the right to terminate, and does not reserve to the landlord a similar right. (Emphasis added)

In analyzing these two decisions, the Court finds that they are not controlling in the case at bar.

In Heller the respondent was a month to month tenant with an oral agreement that he could remain in the subject premises until he died. There was no dispute as to whether the term of the tenancy was definite or indefinite. As the court there stated, a lifetime tenancy can be completed within one year because of the possibility that the tenant could die within a year from the making of the agreement. Yet, notwithstanding the court's finding that the oral agreement survived the Statute of Frauds, it held that the agreement could only be enforced for a period of up to five years as the agent who entered into the agreement with the respondent did not have the authority to exceed that time period.

While Heller is often cited for the proposition that if the duration of an oral lease is measured by the tenant's lifetime it is capable of termination within one year and therefore not barred by the provisions of GOL §§5-701(a)(1) and 5-703(2), this Court does not concur in the proposition that meeting the requirements of §5-701(a)(1) automatically satisfies the provisions of §5-703(2).

Although §5-701 refers to "every agreement", the Legislature determined that there was a need to enact a separate and distinct provision regarding "a contract for the leasing for a longer period than one year...of any real estate" which would be "... void unless the contract ... is in writing ..." . (Emphasis added) As can be seen by reading the two statutes set forth above, if the provisions of §5-701(a)(1) was intended to be all inclusive then there would be no need for §5-703(2). On the other hand, §5-703(2) is very specific in its terms and, unlike the provisions of §5-701(a)(1), does not provide for any exceptions, nor does it make any reference to §5-701(a)(1) as a means to remove the prohibited contract from the Statute of Frauds.

As pointed out in footnote 1, supra, the Appellate Term in Heller did not address the trial court's ruling regarding the Statute of Frauds and, because the petitioner/landlord did not file a cross appeal, the appeals court did not "review" or "subscribe" to those portions of the order that were "adverse to the landlord". At present, the Court is unaware of any appellate decision that supports the reasoning in Heller regarding the Statute of Frauds. This Court finds that the provisions of §5-703(2) stand independently with respect to all lease agreements that exceed one year. See, Rosenberg v, Ridge St. Partners, LLC, NYLJ, 6/17/05, 27:4 (AT 1); Farash v. Sykes Datatronics, 59 NY2d 500; Scherer, Residential Landlord and Tenant in New York §2:7.

The Gerrish decision is distinguishable in that it involved a written lease and, even there, the court stated "that seemingly perpetual leases are not favored by the law, and will not be enforced unless the lease clearly grants to the tenant or his successors the right to extend beyond the initial term by renewing indefinitely". Gerrish, supra at 581 (Emphasis added).As stated in DeSantis v. Kessler, 83 AD2d 766 (AD 4th Dept), "[c]ovenants for renewal are to be construed [*6]most favorably to the lessee (Citations omitted), and while lease renewals in perpetuity are not favored, renewal clauses conferring perpetual rights will be upheld if the intent of the parties is clearly expressed in the lease. (Emphasis added)

In Boening v. Kirsch Beverages, 63 NY2d 449, the parties' predecessors entered into a "verbal agreement" for the distribution of beverages which, regarding the petitioner's obligations to distribute the product, stated in relevant part: "for as long as they satisfactorily distributed the product, exerted their best efforts and acted in good faith.". Subsequently, the plaintiff requested that the agreement be reduced to writing which the defendant refused. Defendant thereafter terminated the agreement and plaintiff sued. In affirming the Appellate Division, Second Department, which reversed the Supreme Court's ruling that the agreement was terminable by the defendant at any time and, hence, did not necessarily extend beyond one year and was not within the ambit of the Statute of Frauds, the Court of Appeals stated:

Here, as the Appellate Division correctly held, the oral agreement between the parties called for performance of an indefinite duration and could only be terminated within one year by its breach during that period. As such, the agreement fell within the Statute of Frauds and was void. ***** [T]the alleged agreement in the present case was one which could only be terminated within [the first year] by a breach of one or the other party to it.'(Citation omitted) *****

... And other than such a breach, there was no provision under the terms of the agreement for it to come to an end. Neither party had an option to cancel, and there was no specified time or event which automatically would cause the agreement to terminate. Instead, under a reasonable interpretation of its own terms, the agreement would extend beyond the first year and, indeed, would continue in perpetuity unless plaintiff failed to perform its part of the bargain.

Being terminable only by plaintiff's breach, the agreement alleged in the complaint was not one which by its terms could be performed within one year. As such, it came within the ambit of the Statute of Frauds and is void for being unwritten.

The respondent here stands in the same shoes as the plaintiff Boening, in that her oral agreement contained no provisions for an option to cancel, and there was no specified time or event which would automatically cause the agreement to terminate.

Unlike the instant matter, the parties in Gerrish memorialized their intentions in writing and the court, upon examination of the document, determined that a life tenancy was created that could only be terminated by the tenant as opposed to a tenancy at will that could be terminated by the landlord. There was no issue of oral agreements or the Statute of Frauds in that case. In light of this Court's position that §5-703(2) is the appropriate statute that applies to this case, respondent's reliance on Gerrish, that her oral agreement to remain in her apartment for as long as she wishes is the equivalent of a life tenancy, is of no consequence as it does not exempt her from the unambiguous language of §5-703(2).

In examining the entire court file to determine whether summary judgment would be [*7]warranted, it became apparent that the respondent, by her own words, was uncertain as to whether, in fact, an oral agreement regarding the duration of her tenancy even existed.

Respondent asserts in her Third Affirmative Defense that she had an oral agreement with the petitioners that she "would be able to reside in the premises until the Respondent wished to vacate". However, in her "somewhat rambling"^[FN3] First Counterclaim, alleging petitioners' breach of "the implied duty of good faith and fair dealing", respondent states that she "trusted" the petitioners and had an "amicable" relationship with them. As a result, "respondent and her mother agreed to numerous substantial rent increases during the first two years that the Petitioners owned the house, and fully expected the predecessor landlord's agreement which was assumed by the Petitioners to continue".^[FN4] (Emphasis added) Respondent's "expectation" that she can remain in the subject premises is not a definitive claim of her right to do so, but merely her anticipation that such an event will occur.^[FN5]

In her affirmation in opposition to the instant motion, the respondent makes several references to a lease agreement and asserts that one truly exists because the petitioners used the word "lease" in a letter dated June 12, 2007. (Aff in Opp , Ex. A) A reading of the entire letter ^[FN6] makes it clear that the petitioners had no intention of continuing any agreement that may have been made with the respondent's deceased mother and requested the respondent to vacate the apartment immediately. In response, the respondent sent the petitioners a letter dated July 15, 2007 which states in relevant part:

What I would like to convey to you is that during the year of aveilus [mourning] I cannot think about looking. I am sure you know that during the year of aveilus, according to Halacha I am not allowed to pursue anything new.

I am willing to start looking for an apartment after the year of aveilus is over, and until then I will keep paying you the current rent. (Pet. Motion, Ex. I)

This letter demonstrates that the respondent did not seek to enforce the "lease" agreement to remain in her apartment for the remainder of her life and, in fact, expressed her "willingness" to vacate the apartment at the end of her mourning period which would be in or about January 2008. This action did not commence until a year thereafter in February 2009 with the service of the 30 Day Notice Of Termination.^[FN7]

Although respondent denies that she is a month to month tenant in both her verified answer and affirmation in opposition, that does not change the fact that by operation of law (RPL §232, supra) she became a month to month tenant, as her alleged oral agreement left the duration of the tenancy open ended. See, Abbey v. Henriquez, 12 Misc 3d 1006 [lease term did not specify an ending date but inserted the word indefinitely- citing RPL §232 the Supreme Court determined that on the 1st of October, after tenant took possession, the lease agreement expired and a month to month tenancy was created]; Stauber v. Antelo,163 AD2d 246 (AD 1st Dept) [a person who enters upon property by permission of the owner for an indefinite period of time is a tenant at will- the acceptance of rent on a monthly basis creates a month to month tenancy (citing RPL§232)]

Had this Court determined that the respondent was entitled to a tenancy for life by applying the reasoning in Gerrish, that the phrase "wished to vacate" is the equivalent of "for the rest of your life", respondent would still be a month to month tenant. As with the tenant in Heller, her tenancy would automatically renew every month until her death, provided that she met all the other terms and conditions of her agreement, such as paying her ongoing use and occupancy.

Respondent contends that summary judgment cannot be granted because there are issues of fact regarding the multiple dwelling status of the subject premises, citing the statement in a Decision/Order rendered by J. Ofshtein, dated 7/14/09, that "Issues of fact exist as to the respondent's multiple dwelling claims". In Czerwinsky v. Hayes, 8 Misc 3d 89 (AT 2nd & 11th Jud. Dist.) the Appellate Term held that the registration of a multiple dwelling is not relevant in determining whether a petitioner can obtain a judgment of possession in a holdover proceeding.

Regarding the respondent's assertion that a trial is necessary to determine the proper use and occupancy that is due the petitioner, it has no bearing on the petitioner's right to possession. In any event, as there is no demand for use and occupancy in the Petition, any issues regarding past use and occupancy are severed for a plenary action.

As to the remaining defenses and counterclaims, the respondent does not provide any proof in relation thereto, in either her affirmation or any exhibits submitted to the Court. Thus, those defenses and counterclaims are severed to be determined in a different forum.

Based on the foregoing, the petitioner's motion for summary judgment is granted.

Accordingly, the petitioner is awarded a final judgment of possession. The warrant may [*9]issue forthwith. However, taking into account the long duration of the respondent's tenancy, the execution of the warrant is stayed through July 31, 2010 with leave to renew for an additional stay, not to exceed three months, in the discretion of the Court, if the parties cannot reach an out of court agreement in that regard. Any stay is conditioned upon the respondent's ongoing payment of use and occupancy in the amount of $ 1,800.00 per month commencing May 1, 2010. This amount is based on the figures provided by the respondent in paragraphs 8 and 9 of her affirmation, dated December 14, 2009.

This constitutes the Decision and Order of the Court.

Dated: April 7, 2010___________________________

GEORGE M. HEYMANN, JHC