265 Realty, LLC v Trec

Jun 6, 2013
2011-2057 K C20
Versions:

Decided on June 6, 2013

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ

2011-2057 K C2012-314 K C.

265 Realty, LLC, Respondent, — against Maria Trec, Tenant, DOROTA TREC, Appellant, -and- JOHN DOE and JANE DOE, Undertenants.

Appeals from (1) a final judgment of the Civil Court of the City of New York, Kings County (Anthony J. Fiorella, Jr., J.), entered March 24, 2010, and (2) an order of the same court entered May 14, 2010. The final judgment, entered pursuant to an order of the same court entered March 24, 2010 granting landlord‘s motion for summary judgment, awarded landlord possession and the sum of $10,883.53 in a nonpayment summary proceeding. The order entered May 14, 2010, insofar as appealed from, upon, in effect, granting tenant Dorota Trec leave to reargue her opposition to landlord‘s prior motion for summary judgment, adhered to the prior determination, and granted to an extent the branch of landlord‘s cross motion seeking an award of attorney‘s fees.

ORDERED that, on the court‘s own motion, the appeals are consolidated for purposes of disposition; and it is further,

ORDERED that the final judgment is reversed, without costs, the order entered March 24, 2010 is vacated, landlord‘s motion for summary judgment is denied, and, upon searching the record, summary judgment is awarded to tenant Dorota Trec dismissing the petition; and it is further,

ORDERED that the order entered May 14, 2010, insofar as appealed from, is reversed, without costs, tenant Dorota Trec‘s motion to reargue her opposition to landlord‘s prior motion for summary judgment is denied as moot and the branch of landlord‘s cross motion seeking an award of attorney‘s fees is denied.

In this nonpayment proceeding, Dorota Trec (tenant) appeals from (1) a final judgment of the Civil Court awarding landlord possession and the sum of $10,883.53, entered pursuant to a March 24, 2010 order granting landlord‘s motion for summary judgment, and (2) an order entered May 14, 2010 which, upon, in effect, granting tenant leave to reargue her opposition to landlord‘s summary judgment motion, adhered to the prior determination and granted to an extent the branch of landlord‘s cross motion seeking an award of attorney‘s fees.

The petition, dated October 7, 2009, alleges that Maria Trec and Dorota Trec are in possession pursuant to a written rental agreement. (However, Maria Trec died in 2008, prior to the commencement of this proceeding.) The petition further alleges that tenants promised to pay monthly rent of $1,209.17 and that they owe rent for July 2009 through October 2009.

The record establishes that, contrary to the allegations of the petition, there was no rental agreement in effect when this proceeding was commenced. The last renewal lease expired on August 31, 2009, and tenant did not sign a renewal lease for the period after that expiration. Nor did tenant pay any rent for the period after the expiration.

Under Samson Mgt., LLC v Hubert (92 AD3d 932 [2012], affg 28 Misc 3d 29 [App Term, 2d, 11th & 13th Jud Dists 2010]), when a rent-stabilized tenant‘s lease expires and the tenant remains in possession without signing a renewal lease, the landlord is not permitted to deem the lease renewed, as the provision in the Rent Stabilization Code which allows a landlord to deem a lease renewed (9 NYCRR 2523.5 [c] [2]) violates Real Property Law § 232-c, which abolished deemed lease renewals. Thus, there was no lease in effect after August 31, 2009. Since there was no payment and acceptance of rent after the expiration of the last lease on August 31, 2009, no month-to-month tenancy was created (Real Property Law § 232-c; see Matter of Jaroslow v. Lehigh Val. R.R. Co., 23 NY2d 991 [1969]; cf. Samson Mgt., LLC v Hubert, 92 AD3d 932). Because a nonpayment proceeding must be predicated on a rental agreement that is in effect at the time the proceeding is commenced (Matter of Jaroslow, 23 NY2d 991; 615 Nostrand Ave. Corp. v Roach, 15 Misc 3d 1 [App Term, 2d, 11th & 13th Jud Dists 2006]; Licht v Moses, 11 Misc 3d 76 [App Term, 2d & 11th Jud Dists 2006]) and no rental agreement was in effect (see Pald Enters. v Gonzalez, 173 Misc 2d 681 [App Term, 2d & 11th Jud Dists 1997]; cf. Stern v. Equitable Trust Co. of NY, 238 NY 267, 269 [1924] [“the 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“]), the petition must be dismissed. Consequently, landlord‘s application for attorney‘s fees must also be denied.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: June 06, 2013