Landlord & Tenant

AppTerm, 9th and 10th Districts

(memorandum opinion)

In landlord's summary nonpayment proceeding, landlord appealed from District Court's dismissal of the petition. The Appellate Term reversed and denied tenant's motion to dismiss, holding that tenant's surrender of possession was not ground for dismissing the holdover proceeding.

Landlord brought this proceeding, contending that tenants were month-to-month pursuant to a written agreement, and that tenant had failed to pay monthly rent. Tenant responded by surrendering possession and seeking dismissal of the proceeding. Tenant contended that the tenancy had become month-to-month by virtue of expiration of the original lease with landlord, and that a nonpayment proceeding may not be maintained against a month-to-month tenant who has surrendered possession. District Court agreed.

In reversing, the Appellate Term rejected the argument that section 232-c of the Real Property Law precluded nonpayment proceedings against month-to-month tenants. The court held that the statute is inapplicable to month-to-month tenants because the month-to-month tenancy is for a term no longer than one month. As a result, landlord is entitled to hold a month-to-month tenant for an additional term by virtue of the tenant's holding over. When landlord brings a nonpayment proceeding, landlord elects to hold the tenant as a holdover rather than a trespasser, and the month-to-month tenancy continues. As a result, tenant's surrender of possession did not mandate dismissal of the proceeding, as tenant's rent obligation continued.

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Nonpayment Proceeding May Be Maintained Against Month-to-Month Tenant

Tricarichi v. Moran

NYLJ 3/13/13, p. 29, col. 4

AppTerm, 9th and 10th Districts

(memorandum opinion)

In landlord's summary nonpayment proceeding, landlord appealed from District Court's dismissal of the petition. The Appellate Term reversed and denied tenant's motion to dismiss, holding that tenant's surrender of possession was not ground for dismissing the holdover proceeding.

Landlord brought this proceeding, contending that tenants were month-to-month pursuant to a written agreement, and that tenant had failed to pay monthly rent. Tenant responded by surrendering possession and seeking dismissal of the proceeding. Tenant contended that the tenancy had become month-to-month by virtue of expiration of the original lease with landlord, and that a nonpayment proceeding may not be maintained against a month-to-month tenant who has surrendered possession. District Court agreed.

In reversing, the Appellate Term rejected the argument that section 232-c of the Real Property Law precluded nonpayment proceedings against month-to-month tenants. The court held that the statute is inapplicable to month-to-month tenants because the month-to-month tenancy is for a term no longer than one month. As a result, landlord is entitled to hold a month-to-month tenant for an additional term by virtue of the tenant's holding over. When landlord brings a nonpayment proceeding, landlord elects to hold the tenant as a holdover rather than a trespasser, and the month-to-month tenancy continues. As a result, tenant's surrender of possession did not mandate dismissal of the proceeding, as tenant's rent obligation continued.

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