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Miriam Diaz v. Aldo De Martino

SUPREME COURT OF THE STATE OF NEW YORK


February 8, 2011

MIRIAM DIAZ,
RESPONDENT,
v.
ALDO DE MARTINO,
APPELLANT.

Appeal from a final judgment of the Civil Court of the City of New York, Queens County (Michael J. Pinckney, J.), entered June 15, 2007.

Diaz v De Martino

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 8, 2011

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

PRESENT: WESTON, J.P., GOLIA and RIOS, JJ

The final judgment, after a non-jury trial, awarded possession to landlord in a holdover summary proceeding.

ORDERED that the final judgment is affirmed, without costs.

In this holdover proceeding, landlord seeks to recover possession of the premises following service upon tenant of a notice terminating his alleged month-to-month tenancy. Tenant asserts that he has a written 10-year lease with a renewal option and that he is not a month-to-month tenant. A review of the record indicates that the Civil Court correctly determined, after a non-jury trial, that tenant failed to prove that he has a valid lease.

Since the purported lease is for a period longer than one year, it must satisfy the statute of frauds (General Obligations Law § 5-703 [2]). In order to satisfy the statute of frauds, the writing must state all of the essential terms of a complete agreement (Walentas v 35-45 Front St. Co., 20 AD3d 473, 474 [2005]; Aceste v Wiebusch, 74 AD2d 810 [1980]), including the area to be leased, the duration of the lease, and the rent to be paid (see Matter of Davis v Dinkins, 206 AD2d 365, 367 [1994]; Nadel v Mehmood, 2002 NY Slip Op 40344[U] [App Term, 2d & 11th Jud Dists 2002]).

Although the purported lease herein was signed, described the property to be leased, the monthly rent, and the duration of the lease, it was not dated and did not otherwise provide a commencement date. Since such a date is an essential term of a complete lease agreement, the writing is insufficient on its face to satisfy the statute of frauds (see Matter of Davis v Dinkins, 206 AD2d at 367). Parol evidence cannot be used to prove what the parties intended in order to bring the lease into compliance with the statute of frauds (see Scheck v Francis, 26 NY2d 466, 472 [1970]; Lanzet v Eastern Wholesale Fence Co., 213 AD2d 601, 602 [1995]). Consequently, the purported lease is not an enforceable agreement.

In view of tenant's entry into possession under the invalid lease and his payment of rent, a month-to-month tenancy was created (see 2 Dolan, Rasch's Landlord and Tenant -- Summary Proceedings §§ 30:30, 30:40 [4th ed]). Inasmuch as it is uncontroverted that landlord properly terminated tenant's month-to-month tenancy, landlord was entitled to a final judgment of possession. Accordingly, the final judgment is affirmed.

Weston, J.P., Golia and Rios, JJ., concur. Decision

Date: February 08, 2011

20110208

© 1992-2011 VersusLaw Inc.



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