Plaintiff moves for summary judgment seeking rent arrears, repair costs and lost rent. Defendant cross-moves for summary judgment dismissing the complaint. For the reasons that follow, both motions are denied.

It appears that the parties entered into a six month rental agreement for a certain one-family dwelling in the Town of Oyster Bay in April 2002. According to a payment ledger submitted by the plaintiff, the plaintiff accepted a $6,000 check (representing the security deposit and first month's rent) from an entity known as Pine Hollow at the commencement of the tenancy. Thereafter all monthly rent payments of $3,000 were made by the defendant. The documentary evidence indicates that the plaintiff entered a second six month lease with the defendant in October 2002. Again, the plaintiff's ledger shows that the defendant paid the full rent from the beginning of that lease term through March 2003. Thereafter, the plaintiff accepted equal payments of $1,500 each from the defendant and Pine Hollow. Plaintiff characterizes Pine Hollow as defendant's "licensee." The defendant insists that Pine Hollow was a co-tenant from the outset. It appears that the dwelling was used to house unrelated employees of the defendant and Pine Hollow, both of whom were engaged in the horse training business.

The second lease expired in April 2003. Thereafter, the defendant and Pine Hollow continued to render payments of $1,500 each per month to the plaintiff, and plaintiff continued to accept same. Plaintiff's ledger indicates that in the months of May and June 2004, the defendant failed to render his payments of $1,500 although payments were received by Pine Hollow. Plaintiff seeks to recover these arrears from defendant. The defendant denies that these monies are outstanding. It appears that defendant thereafter resumed paying his share of the monthly obligation until March 2005, when he avers that he notified the plaintiff by phone that his employees were vacating the premises. The plaintiff denies receiving any such notice. His payment ledger conveniently fails to display the 2005 payment history of the parties. Defendant avers that Pine Hollow's employees continued to occupy the premises after March 2005 and that Pine Hollow continued to satisfy the full $3,000 monthly obligation. According to plaintiff, $5,200 in rent remains owing for the period of August 20, 2005 through October 11, 2005, when [*2]all of the renters vacated the premises. Plaintiff insists that the defendant is responsible for this amount.

There is no dispute that the lease between the parties expired on April 20, 2003. Thereafter, a month-to-month tenancy came into existence. "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 the rent again. When there is no lease and no rent paid, there is no tenancy" (Dashnaw v Shiflett, 10 Misc 3d 1051[A] [Plattsburgh City Ct 2005]; see also Krantz & Phillips, LLP v Sedaghati, 2003 NY Slip Op 50032[U] [App Term, 1st Dept 2003]). A tenant is liable only for the tenant's share of the rent until the termination of his tenancy (see Shickler v Thorpe, 2002 NY Slip Op 40106 [U]) [App Term, 2d Dept 2002]). Here, the defendant avers that his employees vacated the premises in March 2005, thereby terminating his tenancy. There is no affidavit from the plaintiff disputing this fact. Rather, the plaintiff avers that his rental agreement was solely with the defendant, that Pine Hollow's principal, Edward Horowitz, was the defendant's licensee and that the "tenant, his licensee or employees" did not vacate the premises until October 11, 2005, leaving rent arrears totaling $8,200 and repair costs in the amount of $3,043.

The court finds no merit to the plaintiff's argument that since his rental agreement was solely with the defendant, he need look only to the defendant for recovery. While it is true that the October 2002 lease binds only the defendant, it is clear from the documentary evidence, including the plaintiff's own payment ledger, that landlord accepted equal monthly payments from both defendant and Pine Hollow, defendant's purported licensee, throughout the entire duration of the holdover tenancy. These were not "occasional" payments, but recurring monthly payments over the course of more than three years that clearly gave rise to a co-tenancy (cf. Washington v Polanzo, 192 Misc 2d 577 [App Term, 2d Dept 2002]). An owner's acquiescence in a continued occupancy may, where the facts so warrant, justify an inference that a tenancy at will has been created (see City of New York v Utsey, 185 Misc 2d 715 [App Term, 2d Dept 2000] citing Kerrains v People, 60 NY 221, 225 [1875]). Such is the present case with regard to Pine Hollow. Moreover, a co-tenant cannot, by the act of holding over, create a new contract binding a non-consenting tenant who is not in actual possession (see Sutton v Regina Metropolitan Co., 2005 Slip Op 50899[U] [App Term, 1st Dept 2005]).

It is clear that a question of fact exists as to whether the defendant owes the plaintiff $3,000 as and for his share of the rent from May 20, 2004 through July 19, 2004. This must be determined at trial. So too must the question of whether defendant's employees remained in possession after March 2005, as opposed to those of Pine Hollow. Only then will defendant be liable for any use and occupancy fees that may have accrued. This of course begs the question of whether the plaintiff was aware that his one-family dwelling was being used as a boarding house by more than four unrelated adults. Plaintiff claims that he was not aware of any such use (despite the fact that his mother lives directly next door and that his "agent" father had occasion to inspect the premises while it was occupied). If a trial of the matter proves otherwise, the plaintiff will be barred from the recovery of any rent or use and occupancy fees (see Martin v Easy Living Homes, Inc., 15 AD3d 360 [2d Dept 2005]; Jalinos v Ramkalup, 255 AD2d 293 [2d Dept 1998]; BFN Realty Associates v Cora, 8 Misc 3d 139[A] [App Term, 2d Dept 2005]).

Counsel for the parties are directed to appear before the undersigned in Civil Part 2 at 9:30 a.m. on September 5, 2007 for a pre-trial conference.

So Ordered:

_____________________________

DISTRICT COURT JUDGE

Dated:July 12, 2007

cc:Patricia N. Reich, Esq.

Newman & Cahn, LLP