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Town of Islip v. Kismet Park Corporation

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS New York Supreme and/or Appellate Courts


December 21, 2012

TOWN OF ISLIP,
APPELLANT, --
v.
KISMET PARK CORPORATION,
RESPONDENT.

Appeal from a "judgment" of the District Court of Suffolk County, Fifth District (Dennis M. Cohen, J.), dated April 28, 2011, deemed from a final judgment of the same court entered October 8, 2010 (see CPLR 5512 [a]).

Town of Islip v Kismet Park Corp.

Decided on December 21, 2012

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This opinion is uncorrected and will not be published in the printed Official Reports.

PRESENT: MOLIA, J.P., IANNACCI and LaSALLE, JJ

The final judgment, after a non-jury trial, dismissed the petition in a holdover summary proceeding.

ORDERED that the final judgment is affirmed, without costs.

Landlord commenced this commercial holdover proceeding to recover possession of underwater property which landlord had leased to tenant. Following a non-jury trial, the District Court dismissed the petition, finding that an implied year-to-year tenancy had been created after the expiration of the lease on December 31, 2005, and that landlord had failed to provide tenant with six months' notice of termination. We affirm.

The evidence showed that tenant had leased the property from landlord beginning in 1965 with a series of written lease agreements, the last of which, a two-year lease, had expired on December 31, 2005. During the course of the tenancy, it was tenant's custom to pay the annual rent in a lump sum payment in the following year; for example, rent for the year 2005 would be paid in a lump sum in 2006. After the lease expired, tenant continued in possession of the property and, despite subsequent negotiations, the parties never entered into another written lease agreement. Landlord, however, accepted tenant's lump sum rent payment for the year 2006, in 2007, and for the year 2007, in 2008. In May 2009, landlord rejected tenant's tender of rent for the year 2008 and informed tenant that it had passed a resolution to lease the property to a different party. In June 2009, landlord rejected tenant's tender of rent for the years 2008 and 2009, and returned the checks to tenant. Landlord also served tenant with a 30-day notice to terminate the tenancy as of July 31, 2009. Thereafter, in the same month, tenant sent the checks back to landlord with a letter stating that the checks had been provided to landlord "in accordance with the parties' established practice." Landlord admits that it retained the checks. In November 2009, tenant was issued a "Wetlands and Watercourses Permit" by the Town's Department of Planning and Development that expired in February 2011 and which allowed tenant to make improvements to the subject property. Tenant's witness also testified that tenant had paid the property taxes on the subject property for the 2009 and 2010 tax years. In March 2010, landlord commenced a holdover proceeding, which proceeding was dismissed by order dated April 15, 2010. Thereafter, landlord served tenant with a 30-day notice to terminate the tenancy as of May 31, 2010, and commenced the instant holdover proceeding in July 2010.

Contrary to landlord's contention, the trial evidence, including the proof of the expired lease, tenant's continued possession of the property (see Talamo v Spitzmiller, 120 NY 37, 42 [1890]), landlord's acceptance of tenant's annual lump sum rent payments for the year 2006 in 2007, and for 2007 in 2008, the issuance of a permit for improvements, and tenant's payment of the property taxes for the 2009 and 2010 tax years, established that, after the written lease agreement had expired on December 31, 2005, an implied year-to-year tenancy had been created between the parties (see 28 Mott St. Co. v Summit Import Corp., 34 AD2d 144 [1970], affd 28 NY2d 508 [1971]; 2 Dolan, Rasch's Landlord and Tenant -- Summary Proceedings § 30:43 [4th ed]). In order to terminate the tenancy, landlord had to provide tenant with six months' notice of its intent to terminate the tenancy on the annual expiration date of the lease (see 28 Mott St. Co. v Summit Import Corp., 64 Misc 2d 860, 863 [1970]; see also 2 Dolan, Rasch's Landlord and Tenant -- Summary Proceedings § 30:45 [4th ed]). Such notice - - which need not be in written form - - must be timely, definite and unequivocal (see e.g. 28 Mott St. Co. v Summit Import Corp., 64 Misc 2d at 863). The parties' course of conduct, including landlord's retention of tenant's check for 2009 and its issuance of a permit for improvements, and tenant's payment of the property taxes for the 2009 and 2010 tax years, indicates that the year-to-year tenancy continued through 2009, and, despite landlord's contention to the contrary, none of landlord's actions provided tenant with unequivocal notice, six months in advance, of its intent to terminate the tenancy on December 31, 2009 (see 28 Mott St. Co. v Summit Import Corp., 64 Misc 2d at 863).

Accordingly, the final judgment is affirmed.

Iannacci and LaSalle, JJ., concur.

Molia, J.P., dissents in a separate memorandum.

Molia, J.P., dissents and votes to reverse the final judgment and remit the matter to the District Court for the entry of a final judgment in favor of landlord in the following memorandum.

I respectfully disagree with the majority's view that the record supports a finding that a year-to-year tenancy was created following the December 31, 2005 expiration of the tenant's last renewal lease.

At common law, when a tenant held over following the expiration of an agreement for a definite term, the landlord had the right to hold the tenant for another term, and the tenancy that would be created upon the landlord's exercise of that right was a tenancy for a definite period, not a periodical tenancy (1 New York Law of Landlord and Tenant § 159, at 292-293 [1937]; see e.g. Jacob v Jacob, 125 Misc 649 [1925]; Oppenheimer, Eisler Realty Co. v Wendler, 111 Misc 177 [1920]; Ludington v Garlock, 55 Hun 612, 9 NYS 24 [1890]). The fact that the tenancy might continue in that fashion over several periods did not convert the tenancy into a periodical tenancy terminable only upon notice (see 1 New York Law of Landlord and Tenant § 159, at 293, and cases cited therein). The common-law rule that a holdover tenant may be held as a tenant for a new term was changed by the enactment in 1959 of Real Property Law § 232-c (see Matter of Jaroslow v Lehigh Val. R.R. Co., 23 NY2d 991 [1969]), which provides: "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." As a result of the enactment of Real Property Law § 232-c, a landlord facing a tenant holding over after the expiration of a lease longer than a month "can either commence a proceeding to remove the tenant or accept rent for any period after the expiration of the lease, thereby creating a month-to-month tenancy unless an agreement either express or implied is made providing otherwise'" (Samson Mgt., LLC v Hubert, 92 AD3d 932 [2012]).

In the instant case, there was no express agreement with regard to the tenancy to be created when tenant held over following the December 31, 2005 expiration of its last written lease, and neither landlord's acceptance, in 2007, of tenant's lump sum rent payment for 2006, and, in 2008, of tenant's lump sum payment for 2007, nor its retention in 2009 of the rent checks covering 2008 and 2009 supports the retroactive implication of an agreement for a year-to-year tenancy. Rather, the tenancy that resulted upon landlord's acceptance of rent "for any period" (Real Property Law § 232-c) was a month-to-month tenancy terminable upon a month's notice (see Real Property Law § 232-c), which was here given. Moreover, even if an agreement were to be implied retroactively, as the majority necessarily does, the only agreement or agreements that could be implied here would be for a definite term, or successive terms, which agreements would not require the giving of a six-month notice of termination (see Adams v City of Cohoes, 127 NY 175 [1891]). The case relied upon by the majority, 28 Mott St. Co. v Summit Import Corp (34 AD2d 144 [1920], affd 28 NY2d 508 [1971]), in which an agreement for a year-to-year tenancy was found, is distinguishable on its facts, as it did not involve a holding over following the expiration of a lease but rather an entry into possession pursuant to a mutual expectation that a 10-year lease would be executed, the failure of the parties to execute the 10-year lease, and, among other things, the fixing of an annual sum for certain services.

Accordingly, I find that no year-to-year tenancy was created and, thus, that no six-month notice was required and would reverse the final judgment and remit the matter to the District Court for the entry of a final judgment in favor of landlord. Decision Date: December 21, 2012

20121221

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