Civil Court of the City of New York, New York County, December 14, 2023

Manhattan Legal Services (Michael Y. Torres of counsel) for Clara Hidalgo, respondent.

Gerald Matthew Pigott for petitioner.

Respondent has moved to dismiss the petition pursuant to CPLR 3212 on the basis that petitioner does not have a cause of action for nonpayment of rent "because no rental agreement was in effect at the time this proceeding was commenced." (NYSCEF Doc No. 10, respondent's attorney's affirmation ¶ 31.) Respondent also seeks summary judgment on the basis of the doctrine of tender and refusal, as respondent attempted to tender her rent in full for April 2022, and thereafter "save[d] all the monthly rent/maintenance payments" on the advice of her attorney. (Id. ¶¶ 15, 17.)

It is not disputed that respondent's first and only lease expired on December 31, 2020; nor is it disputed that after the lease expired, respondent continued to pay petitioner $1,210.00 per month, the rental amount preserved in the expired lease. Through March 2022, respondent's checks were accepted and cashed. On April 8, 2022, petitioner commenced a holdover{**82 Misc 3d at 393} proceeding against respondent predicated on a notice of termination purporting to terminate her tenancy as of March 31, 2022. (Mendez v Hidalgo, index No. 304924-22.) In April 2022, by check dated April 3, 2022, during the period between expiration of the notice of termination and the commencement of the proceeding, respondent's regular payment was returned to her with a [*2]photocopy of the check marked "VOID" and a notation at the bottom that stated, "The deadline to vacate the premises was March 31 2[022]. Therefore, rent payments will no longer be accepted." (NYSCEF Doc No. 15, Hidalgo aff ¶¶ 11-12.) The holdover proceeding was ultimately dismissed in March 2023 for failure to plead the nature of the tenancy.^[FN1]

Anticipating petitioner's opposition to the motion, respondent argues "the First Department does not require that the subject premises be rent stabilized or rent controlled in order to determine that a summary non-payment proceeding may not be maintained where there is no rental agreement in effect between the petitioner and respondent at the time the proceeding was commenced." (NYSCEF Doc No. 10, respondent's attorney's affirmation ¶ 34.) Respondent notes that none of the First Department cases she cites in support of her argument "condition the applicability of this doctrine of law on the regulatory status of the subject premises in question." (Id.)

Petitioner opposes respondent's motion on the basis that a month-to-month tenancy was formed after the expiration of the lease and that this agreement was in effect at the time that petitioner filed this nonpayment proceeding. Petitioner notes that respondent concedes that "each of the cases cited deals with rent stabilized apartments." (NYSCEF Doc No. 17, petitioner's attorney's affirmation ¶ 13.) However, petitioner advances that respondent's argument is specious because, while the cited cases involved rent-stabilized tenancies, there was no analysis in those decisions regarding the application of the holdings to unregulated month-to-month tenants, to wit, "[n]one of the cases cited even mention non-rent-stabilized units. In fact, if the courts had done so, it would have reversed long standing statutes and case law." (Id. ¶ 14.) Citing to Logan v Johnson (34 AD3d 758 [2d Dept 2006]), Bahamonde v Grabel{**82 Misc 3d at 394} (34 Misc 3d 58 [App Term, 2d Dept, 9th & 10th Jud Dists 2011]), Trec v Cazares (185 AD3d 866 [2d Dept 2020]), and Carino v Mertens (75 Misc 3d 1217[A], 2022 NY Slip Op 50525[U] [Sup Ct, Dutchess County 2022]), petitioner argues that "it would be a reversible error for this Court to agree with respondents." (Id. ¶ 17.) According to petitioner,

"[t]he reason that respondent would like this Court to believe that the appellate courts do not differentiate between rent stabilized and non rent stabilized matters is because there is no case law that says non-rent stabilized apartments do not become month to month tenancies under the same terms of the prior lease agreement. In fact, every case on this matter states just the opposite." (Id. ¶ 16 [emphasis added].)

In reply, respondent points to two of the cases she cited in support of her motion where the tenancies were not subject to rent stabilization: 6 W. 20th St. Tenants Corp. v Dezertzov (75 Misc 3d 135[A], 2022 NY Slip Op 50529[U] [App Term, 1st Dept 2022]), which was a nonpayment proceeding by a cooperative corporation to recover "rent and other charges demanded in the petition" pursuant to a lease; and East Harlem Pilot Block Bldg. IV HDFC Inc. v Diaz (46 Misc 3d 150[A], 2015 NY Slip Op 50289[U] [App Term, 1st Dept 2015]), involving a succession rights claim to a project-based Section 8 tenancy. (NYSCEF Doc No. 18, respondent's attorney's affirmation in reply ¶ 14.)^[FN2] Respondent further argues that there was no month-to-month tenancy created after petitioner ceased accepting rent from respondent when it [*3]commenced the holdover proceeding in March 2022. Notably, that proceeding was dismissed for failure to establish in the pleadings what kind of tenancy petitioner sought to terminate.

Oral argument was held on December 5, 2023, and decision was reserved.

Can a nonpayment proceeding be commenced against a month-to-month tenant?

The Real Property Actions and Proceedings Law provides that a nonpayment proceeding may be maintained against a tenant when

"[t]he tenant has defaulted in the payment of rent,{**82 Misc 3d at 395} pursuant to the agreement under which the premises are held, and a written demand of the rent has been made with at least fourteen days' notice requiring, in the alternative, the payment of the rent, or the possession of the premises, has been served upon [them] as prescribed in section seven hundred thirty-five of this article." (RPAPL 711 [2] [emphasis added].)

Real Property Law § 232-c provides as follows:

"Where a tenant whose term is longer than one month holds over after the expiration of such term, such holding over shall not give to the landlord the option to hold the tenant for a new term solely by virtue of the tenant's holding over. In the case of such a holding over by the tenant, the landlord may proceed, in any manner permitted by law, to remove the tenant, or, if the landlord shall accept rent for any period subsequent to the expiration of such term, then, unless an agreement either express or implied is made providing otherwise, the tenancy created by the acceptance of such rent shall be a tenancy from month to month commencing on the first day after the expiration of such term." (Emphasis added.)

Petitioner is correct that there is a dearth of controlling First Department law regarding nonpayment proceedings against month-to-month tenants who are not protected by any statutory or regulatory scheme.^[FN3] It seems that there is a quiet, implicit consensus among practitioners that [*4]such a proceeding is{**82 Misc 3d at 396} proper. However, as set forth below, such proceedings are not properly maintained after a landlord ceases to accept rent. Such is the law in the First Department.

All four cases cited by petitioner are from courts in the judicial districts of the Second Department, two are from the Appellate Division, and, critically, none of the cited cases involves a summary proceeding pursuant to RPAPL 711 (2). Those cases ostensibly follow a rule different from that in the First Department.

In Logan v Johnson (34 AD3d 758 [2d Dept 2006]), the Court found a month-to-month tenancy had initially been formed by the acceptance of rent after the expiration of the lease. This gave the plaintiff standing to sue for specific performance under the expired lease, the terms of which carried into the month-to-month tenancy and obligated respondent to pay rent "for as long as he remained in possession of the premises." (Id. at 759 [emphasis added].) The Appellate Division also held that the court below "did not err in awarding the defendant the sum of $1,500 per month for the 67-month period during which the plaintiff did not pay rent." (Id. [citation omitted].) In Trec v Cazares (185 AD3d 866 [2d Dept 2020]), the parties had agreed that rent under a lease was considered paid or waived in exchange for the plaintiff's services, and this arrangement "indicated that a month-to-month tenancy was created and was in effect for as long as [the tenant] remained in possession of the premises" under the same terms and conditions. (Trec, 185 AD3d at 867 [emphasis added].)

However, in Matter of Jaroslow v Lehigh Val. R.R. Co. (23 NY2d 991 [1969]), the Court of Appeals opined that if no rent is accepted after the end of the lease term, then no month-to-month tenancy is created. The Jaroslow court held that "[a]n action for nonpayment of rent, based on a notice purporting to fix a rent, never agreed upon by tenant and never paid by tenant, does not lie, there being no tenancy in fact or at law obligating the tenant for such rent." (Id. at 993.) The Court further held, where no month-to-month tenancy is created by the payment of rent after expiration of the lease, "the landlord's remedy is limited to removal of the tenant and damages . . . for use and occupation." (Id.)

{**82 Misc 3d at 397}The Appellate Division, First Department case law discussing whether or not a month-to-month tenancy is created after expiration of the lease focuses primarily on holdover proceedings, not nonpayment proceedings pursuant to RPAPL 711 (2). In these cases the Court was charged with parsing whether or not an option to renew the lease term existed under the lease, and, if so, whether or not the option was properly exercised during the lease term or during a month-to-month tenancy after expiration of the lease. These cases, discussed infra, recognize the possibility of creating a month-to-month tenancy, and distinguish such a tenancy from "an agreement either express or implied . . . providing otherwise."^[FN4] The cases also lead to the [*5]determination that it is improper to maintain a nonpayment proceeding against an unregulated month-to-month tenant for rent not paid after the expiration of the tenancy at the end of the month, because "each month is a new term for a new period, each a separate and new contract." (Bleecker St. Tenants Corp. v Bleeker Jones LLC, 65 AD3d 240, 245-246 [1st Dept 2009] [emphasis added, citations omitted], revd on other grounds 16 NY3d 272 [2011].) As this is the law in the First Department, then when the month-to-month tenancy expires at the end of any given month, a new agreement is created only by paying rent on or about the first of the next month, and, if no rent is paid, there is no longer a valid contract under which to sue for past due rent.

Bleecker St. Tenants Corp. involved a lease provision which allowed a lease renewal option to be exercised during the lease term and further provided that the tenant shall "remain in possession as a month-to-month tenant," until the landlord gave written notice of the option to renew, at which point the tenant would have 60 days to act. (Bleecker St. Tenants Corp., 65 AD3d at 242.) The Court of Appeals reversed the Appellate Division and held that "the parties agree that, under these [lease] provisions, a renewal option could be exercised even after the original lease term had expired, during the [successive]{**82 Misc 3d at 398} month-to-month tenancies resulting from the absence of written notice," without violating the rule against perpetuities. (Bleecker St. Tenants Corp., 16 NY3d at 275.) In other words, because each separate, month-to-month tenancy is a contract unto itself for which the original lease provided, it follows that exercising the lease option during a month in which the tenant had created a month-to-month tenancy as set forth in the lease could satisfy the requirement that the option be exercisable during the lease term until after expiration of 60 days' written notice from the landlord that the tenant must exercise the option. (Id. at 278.)^[FN5]

In 120 Bay St. Realty Corp. v City of New York (44 NY2d 907 [1978]), a case with facts differing from Bleecker St. Tenants Corp. but consistent therewith, the plaintiff's lease term had expired without the City's formal exercise of the lease renewal option, although the plaintiff continued in possession pursuant to the lease's holdover provision. (See 120 Bay St. Realty Corp. v City of New York, 59 AD2d 527, 528 [2d Dept 1977, Shapiro, J., dissenting], revd 44 NY2d 907 [1978].) The Court of Appeals made a clear distinction between an extension of a lease term and an extension of a tenancy as a month-to-month tenant, observing that "defendant occupies the subject premises as a month-to-month tenant rather than as a tenant under a valid and existing lease." (120 Bay St. Realty Corp., 44 NY2d at 907, 909 [emphasis added].)

In North Shore Community Servs., Inc. v Community Dr. LLC (120 AD3d 1142 [1st Dept 2014]), referring again to the Real Property Law § 232-c language that a month-to-month tenancy is created at the expiration of a lease term "unless an agreement either express or implied is made providing otherwise," the Court held that the lease which comprised certain language was "such an agreement." (North Shore Community Servs., Inc., 120 AD3d at 1143.) The lease specifically negated recognition of a month-to-month tenancy at lease expiration and provided that "upon plaintiff's default of its obligation to surrender the premises at the end of the lease term, plaintiff's [*6]continued occupation of the premises, with or{**82 Misc 3d at 399} without defendant's consent or acquiescence, will be treated as a tenancy at will and 'in no event' a tenancy from month to month." (Id.) Thus, plaintiff's argument that a month-to-month tenancy was created by the tender and acceptance of rent was refuted by the express language in the lease.

In 6 W. 20th St. Tenants Corp. v Dezertzov (75 Misc 3d 135[A], 2022 NY Slip Op 50529[U] [App Term, 1st Dept 2022]), cited by respondent, the court held, "[a]lthough the petition alleged the existence of a written lease between the parties, petitioner admitted at trial that it was not in possession of any proprietary lease, share certificate, transfer agreement or other direct evidence of any lease agreement with respondents." (6 W. 20th St. Tenants Corp., 2022 NY Slip Op 50529[U], *2.) The decision contains no analysis of month-to-month tenancies as, apparent from the trial court decision, the issue never arose. Petitioner attempted at trial to prove a lease agreement through circumstantial evidence which the trial court found to be "inconsistent" and "unreliable." (Id.) In dismissing the proceeding, commenced pursuant to RPAPL 711 (2), for petitioner's failure to prove its prima facie case, the trial court cited to Stern v Equitable Trust Co. of N.Y. (238 NY 267, 269 [1924]), for the proposition that "[t]he relation of landlord and tenant is always created by contract, express or implied, and will not be implied where the acts and conduct of the parties negative its existence." (6 W. 20th St. Tenants Corp. v Dezertzov, 71 Misc 3d 1226[A], 2021 NY Slip Op 50505[U], * 2 [Civ Ct, NY County 2021] [citation omitted].) In affirming the decision, the Appellate Term noted that "[a] nonpayment proceeding may only be maintained to collect rent owed pursuant to an agreement between the parties, express or implied, and here petitioner failed to meet its burden to establish the existence of an agreement with respondents to pay the rent and other charges demanded in the petition," citing to West 152nd Assoc., L.P. v Gassama (65 Misc 3d 155[A], 2019 NY Slip Op 51926[U] [App Term, 1st Dept 2019]) (6 W. 20th St. Tenants Corp., 2022 NY Slip Op 50529[U], *1-2). In Gassama, the Appellate Term noted (2019 NY Slip Op 51926[U], *1-2),

"The Court also properly rejected landlord's claim that tenant became a month-to-month tenant after the expiration of the November 2014 license agreement, since that document expressly indicated that 'the rights of the Licensee shall not be deemed to be or construed as a month-to-month tenancy . . . .' {**82 Misc 3d at 400}Moreover, even assuming that a month-to-month tenancy was created following expiration of the license agreement, there was no agreed rental amount for any month ensuing after tenant ceased paying rent."

In Krantz & Phillips, LLP v Sedaghati (2003 NY Slip Op 50032[U] [App Term, 1st Dept 2003]), a proceeding commenced pursuant to RPAPL 711 (2), the Appellate Term, First Department affirmed dismissal of a nonpayment petition which sought rent for January 2002 and February 2002, but was premised upon a lease that expired October 31, 2001. The court held that "[e]ven assuming that a month-to-month tenancy was created following expiration of the lease, there was no agreed upon rental for any month ensuing after tenant ceased paying rent and no basis for holding tenant contractually liable for the rent reserved in the expired lease." (Sedaghati, 2003 NY Slip Op 50032[U], *1, 3 [citation omitted].) Citing to Jaroslow, the court noted the landlord could commence a holdover proceeding in which it could seek use and occupancy. (Id.)

Here, based on the foregoing cases, summary judgment should be granted in favor of respondent. The original lease, annexed to petitioner's affidavit in opposition, does not specify any agreement between the parties as to how to treat the tenancy once the lease expires. Absent "an agreement, express or implied," the issue becomes a question of law. The cases above make clear that a month-to-month tenancy is a contract from month to month which is renewed each month by the tender and acceptance of rent. Once the month for which a tenant tendered and the [*7]landlord accepted rent ends, the agreement must be renewed by another tender and acceptance of rent. Here, immediately after the lease expired respondent paid rent monthly at the beginning of the month from January 1, 2021, through March 2022, at which point respondent was notified in writing by petitioner that "rent payments will no longer be accepted." (NYSCEF Doc No. 15, Hidalgo aff ¶¶ 11-12; NYSCEF Doc No. 14, respondent's exhibit D, returned Apr. 2022 maintenance check with note from petitioner.) Subsequently, petitioner sought to terminate respondent's license to occupy the apartment. No rent or use and occupancy was ever accepted or tendered after the rejection of respondent's offer of rent for April 2022. As no rent was subsequently paid, respondent has no obligation, express or implied, to pay rent for the months sought in the petition, all of which accrued commencing April{**82 Misc 3d at 401} 2022. Moreover, as noted in 6 W. 20th St. Tenants Corp., "[t]he relation of landlord and tenant is always created by contract, express or implied, and will not be implied where the acts and conduct of the parties negative its existence." (6 W. 20th St. Tenants Corp., 71 Misc 3d 1226[A], 2021 NY Slip Op 50505[U], *2-3 [Civ Ct, NY County 2021] [citation omitted].)

Here, petitioner's efforts to terminate respondent's tenancy by a notice of termination served in December 2021, terminating respondent's tenancy as of March 31, 2022, and respondent's failure to offer rent from May 2022 to present, are negative to the existence of a contract. Finally, as with the holdover proceeding, and as in the court's March 8, 2023 decision/order dismissing that proceeding, supra, petitioner has vaguely pleaded the existence of a written lease but does not plead that it is no longer in effect, when it expired, or under what kind of tenancy respondent is now in possession upon which petitioner rests its cause of action. Even if petitioner had pleaded that respondent remained in possession under a month-to-month tenancy, such a statement is contradicted by the facts. Respondent has not offered and petitioner has not accepted an offer of rent since March 2022; thus, the last month that a month-to-month tenancy was in existence was March 2022, and that agreement has long expired.

Tender and Refusal

Respondent's attorney's claim that it is a "fact" that respondent has enough monies saved to pay all rent at the monthly rental amount of $1,210 from April 2022 to present is supported only by respondent's self-serving declaration of same. (NYSCEF Doc No. 15, Hidalgo aff ¶¶ 13-14.) Moreover, notwithstanding the foregoing, respondent avers only to saving the money, not to actually offering to pay the full amount due each month. In addition, respondent's argument begs the question as to why she did not pay all the rent demanded in the 14-day notice in order to avoid this litigation altogether. Respondent's response made through her attorney is that the rent demand contradicted prior statements by the landlord stating that rent would no longer be accepted. (NYSCEF Doc No. 18, respondent's attorney's affirmation in reply ¶ 25.) Respondent has not eliminated any doubt as to her ability to claim tender and refusal. The cases cited by respondent involving a third party's tender are inapposite here. The other cases are distinguishable in that tenants therein repeatedly tendered the full amount due. Here, there is no proof of tender except for in{**82 Misc 3d at 402} April 2022. Respondent's motion for summary judgment founded upon the doctrine of tender and refusal is denied.

Accordingly, it is ordered that respondent's motion for summary judgment founded upon the doctrine of tender and refusal is denied; and it is further ordered that respondent's motion for summary judgment pursuant to CPLR 3212 is [*8]granted for the reasons stated above without prejudice to commencement of an appropriate holdover proceeding.