Appeal from a final judgment of the Justice Court of the Village of Tarrytown, Westchester County (Kyle C. McGovern, J.), entered December 6, 2012. The final judgment, insofar as appealed from, after a nonjury trial, awarded landlords possession and the principal sum of $7,225 as against tenant Brent Paulus.

ORDERED that the final judgment is modified by reducing the amount of the monetary award to the principal sum of $5,975; as so modified, the final judgment is affirmed, without costs.

In October 2012, landlords commenced this nonpayment summary proceeding to recover possession and unpaid rent at the rate of $1,550 per month for the period of April 2012 through September 2012. The petition was thereafter amended to include a payments due for October and November of 2012, and was again amended at the December 6, 2012 trial to include the payment due for December 2012, for a total sought of $12,225. Pursuant to an order of the Justice Court, tenants had deposited $5,000 with the court.

At the nonjury trial, landlords' daughter, who asserted that she had served as their agent, testified as to the amount of the arrears and explained that tenants had been credited for their partial payments of rent for April and May of 2012. Landlord Maria Priegue testified with respect to her purchase of the premises with her husband and their receipt of the deed, which was admitted into evidence. It is undisputed that tenants had remained in possession as month-to-month tenants after the expiration of their one-year written lease.

Tenant Brent Paulus testified, asserting that he was not responsible for paying the December rent since he and his brother, Brandon Paulus, had vacated the apartment on December 1, 2012. However, Brent Paulus admitted that he and his brother had not notified landlords that they were moving out or turned over the keys. While Brent Paulus testified that he had paid his share of the April and May 2012 rent, although his brother had not, he admitted that no rent had been paid for the period of June through November of 2012. Brandon Paulus did not testify. [*2]

After the trial, the Justice Court found that landlords had established ownership of the premises, and the court credited the testimony of landlords' agent with respect to the arrears. The court ordered the immediate release of the $5,000 deposit to landlords and, with respect to tenants' security deposit, directed the scheduling of an inspection of the apartment to determine whether there was any damage. Tenants' attorney confirmed that tenants were out of possession of the premises. A final judgment was entered on December 6, 2012, awarding landlords the principal sum of $7,225, and a warrant issued. This pro se appeal by Brent Paulus ensued.^[FN1]

Since the written lease had expired, a month-to-month tenancy on the same terms as those in the original lease is implied, inasmuch as tenants remained in possession after the expiration of the lease and continued to pay rent (see City of New York v Pennsylvania R.R. Co., 37 NY2d 298 [1975] McClenan v Brancato Iron & Fence Works, 282 AD2d 722 [2001]). Consequently, it was proper for landlords to bring a nonpayment summary proceeding against tenants to recover the unpaid rents (see Tricarichi v Moran, 38 Misc 3d 31 [App Term, 9th & 10th Jud Dists 2012]). Brent Paulus argues that landlords failed to prove his nonpayment of rent for April and May of 2012. However, under the circumstances presented, Brent Paulus was jointly liable with his brother for the arrears (see e.g. Armour v McDermott, 25 Misc 3d 139[A], 2009 NY Slip Op 52381[U] [App Term, 9th & 10th Jud Dists 2009] Wager v Haberman, 85 Misc 2d 314 [Sup Ct, NY County 1975]), and landlords demonstrated that they had credited Brent Paulus's partial payments for those months.

With respect to the amount due for December 2012, we note that the issuance of a warrant in a nonpayment proceeding cancels the rental agreement (RPAPL 749 [3]) as of the date that the proceeding was commenced (see Schulte, Inc. v Cross, 146 Misc 763 [App Term, 1st Dept 1933] 3 Robert F. Dolan, Rasch's Landlord and Tenant—Summary Proceedings § 46:18, at 205 [4th ed 1988]). Thus, the amounts due landlord for the period after the commencement of the proceeding constitute use and occupancy, not rent. As the rule against apportionment which applies to rent does not apply to use and occupancy (e.g. Vacca v Balbuena, 25 Misc 3d 132[A], 2009 NY Slip Op 52176[U] [App Term, 9th & 10th Jud Dists 2009] see Towne Partners, LLC v RJZM, LLC, 79 AD3d 489 [2010]), tenants are liable only for the portion of December 2012 during which they remained in possession, which, in the circumstances presented, was no later than December 6, 2012, when tenants' attorney confirmed that tenants were out of possession. Thus, tenants owe only $300 for December 2012.

In view of the foregoing, the monetary award in favor of landlords must be reduced. Since Brent Paulus and his brother are united in interest, we reduce the award as against both (see Rochdale Vil., Inc. v Goode, 16 Misc 3d 49, 53 [App Term, 2d & 11th Jud Dists 2007]). Accordingly, the final judgment is modified by reducing the amount of the monetary award to the principal sum of $5,975.

Iannacci, J.P., Marano and Tolbert, JJ., concur.
Decision Date: April 14, 2014