These two nonpayment proceedings are consolidated for disposition due to their similar issues of law. Respondents, Steve Castillo and Benedict Anselmo, move separately to dismiss on basis that they are not the record tenants with petitioner landlord and accordingly that the proceedings against them do not lie. Respondents also move for partial summary judgment on other grounds that this court need not consider.

Altragracia Adams, the named respondent and record tenant in L & T Index No. 060920/10, vacated her apartment in October 2000. Petitioner argues that her son, respondent Steve Castillo, consented to the court's jurisdiction when he initially appeared by counsel and allowed himself in a two-attorney so-ordered stipulation to be substituted for "John Doe." Because of that consent to jurisdiction, petitioner argues that Castillo is liable for his mother's debt.

Lillian Anselmo, the named respondent and tenant of record in L & T Index No. 060923/10, is deceased. Her son, respondent Benedict Anselmo, continues to occupy the apartment. Petitioner argues that Anselmo consented to jurisdiction when he appeared by [*2]counsel, and entered into a two-attorney stipulation of adjournment in which he allowed himself to be substituted for "John Doe," and he waived personal jurisdiction and agreed to pay monthly use and occupancy pendente lite.

In a nonpayment proceeding, a landlord-tenant relationship must be shown to exist between the parties for a landlord to sue for rental arrears. (Henry v Green,126 Misc 2d 360, 362 [Mt. Vernon City Ct 1984].) In both cases before this court, the record tenant of the subject premises was respondent's mother, and neither Castillo nor Anselmo may be held accountable for their mothers' alleged nonpayment. Respondents agreed in their stipulation only to pay use and occupancy pendente lite. They never agreed to pay rent arrears, and petitioner never agreed to make Castillo or Anselmo record tenants. Thus, "[a] landlord-tenant relationship [must be] created by contract, either express or implied," (Hispano Americano Advertising, Inc. v Dryer, 112 Misc 2d 936, 937 [Civ Ct, New York County], citing Stern v Equitable Trust Co. of NY, 238 NY 267, 269 [1924]), and no such contract exists here. This landlord-tenant relationship may not be implied on "[c]ontinued possession or occupancy alone." (Id.) Although both Castillo and Anselmo occupy the subject premises and consented to the court's jurisdiction in their respective appearances by counsel and by entering into a stipulation with petitioner, they did not consent to entering into a landlord-tenant relationship with petitioner or to being held responsible for their mothers' debts.

Petitioner also argues that Anselmo consented to the court's jurisdiction under RPAPL 711 (2), which provides that "[w]here a tenant dies during the term of the lease and rent due has not been paid and no representative or person has taken possession of the premises . . . the proceeding may be commenced after three months from the date of death of the tenant by joining . . . one of the surviving issue . . . ." In the case at bar, not only has Anselmo taken possession of the apartment, but he has also continued to pay use and occupancy of the premises. Jurisdiction under RPAPL 711 (2) is therefore inapplicable.

Even if Castillo and Anselmo are implied month-to-month tenants from the payment to petitioner and petitioner's acceptance of, rent — an argument petitioner did not make — a landlord is precluded from using a nonpayment proceeding to collect rental sums allegedly due. (See Jaroslow v Lehigh Valley R.R. Co., 23 NY2d 991, 993 [1969].) Absent a rental agreement between the parties, a landlord must elect an alternate remedy to remove the tenant and secure damages for use and occupancy. (See RPL § 232 [c], Krantz & Phillips, LLP v Sedaghati, 2003 NY Slip Op 50032[U], *1 [App Term, 1st Dept 2003].) If petitioner were permitted to maintain this proceeding against respondents under these circumstances — in which no contract exists between parties — he would unilaterally bind respondents to a payment not bargained for. (See 1400 Broadway Assocs. v Henry Lee & Co. of NY, Inc., 161 Misc 2d 497, 499-501 [Civ Ct, New York County 1994] [holding that a landlord may not bring a nonpayment proceeding for rent that accrued after the expiration a lease and after the tenant stopped paying rent as month-to-month tenant; the landlord's remedy is to bring a holdover proceeding or a plenary action for past and currently accruing use and occupancy].)

These proceedings are dismissed without prejudice to any future action or proceeding.

This opinion is the court's decision and order.

Dated: July 30, 2010 [*3]

J.H.C.