Opinion
SP2070/04.
Decided June 29, 2004.
Ezratty, Ezratty Levine, for all Plaintiffs, Mineola, NY, Attorneys/Parties on Record.
Nassau/Suffolk Law Services Committee, Inc., for all Defendants Hempstead, NY.
The respondents move to dismiss the petition in this residential summary holdover proceeding.
The respondents principally argue that the petitioner is the assignee solely of the lease between the fee owner and the respondents. The petitioner is not the assignee of the property itself.
Moreover, the assignment by its terms was to last only "for all the rest of the term of the Lease, or any renewals or extensions thereof."
Consequently, assert the respondents, the petitioner-assignee has no right to the reversion of the property following the termination of the lease. The petitioner's interest terminated along with the lease termination which forms the alleged predicate of this holdover proceeding. The petitioner, having no abiding interest to assert, lacks standing to prosecute this proceeding.
The petitioner's response is that "while the lease term had expired, the terms of the lease continued by operation of law, for the duration of Respondents' period of holding over. By virtue of the fact that Respondents remained in the subject premises . . . the lease became `extended' for the duration of their occupancy."
This argument, however, is only partially correct.
It is certainly true that if the landlord accepts rent from the tenant following the expiration of a lease, a monthly tenancy arises, presumed as a matter of law to be controlled by the same terms as the expired lease. See, Real Property Law § 232-c; Akivis v. Drucker, 177 AD2d 349 (1st Dep't 1991).
However, in the event that no rental is accepted, and no monthly tenancy arises, the expired lease loses all force and effect. As stated by Judge Pound in People's Trust Co. v. Schultz, 244 NY 14, 18 (1926):
[L]iability for use and occupation is not liability for rent under the lease. The force of the agreement sued on ends when the lease terminates and if the defendant has effectively terminated the lease, a recovery may not be had on the agreement after that date.
Accord, 2641 Concourse Co. v. City University of New York, 137 Misc 2d 802 (Ct. of Cl. 1987), aff'd on op. below, 147 AD2d 379 (1st Dep't 1989); Beacway Operating Corp. v. Concert Arts Society, Inc., 123 Misc 2d 452 (Civ.Ct., NY Co. 1984) (following termination of lease, what is owed by tenant is "use and occupancy," not rent; in determining the appropriate use and occupancy, the rent reserved in the expired lease is probative but not necessarily dispositive).
In the instant case, either the landlord has extended the tenants' lease, in which event the tenants are not holdovers; or the landlord has not done so, in which case the petitioner's interest has expired.
In either case, dismissal is required.
So Ordered.