Opinion
SP 269/05.
Decided August 18, 2005.
Juliette Caputo, Franklin Square, New York, Respondent Pro Se.
Mary Ellen Divone, Esq., Hyde Park, New York, Attorney for Petitioners.
Nassau/Suffolk Law Services Committee, Inc., Hempstead, New York, Attorney for Respondents.
Petition obtained a judgment for possession and money in the sum of $2,653.00 against respondents signed by Judge DeStefano on May 2, 2005. Also Judge DeStefano signed the warrant to evict respondents from 199 Madison Avenue, Franklin Square.
Petitioner brought a holdover proceeding against respondents to terminate this Section and tenancy.
The letter terminating the tenancy dated October 26, 2004, states:
Please be advised that I represent Agatina and Alfred Zappala, the owners of 199 Madison Avenue, Franklin Square, NY.
Financial necessity has forced my clients to place this home on the market. As a result thereof, it is necessary to terminate the monthly tenancy of the tenants, Juliette Caputo, Anna Heredia, and Washington Chaves.
This serves as the sixty (60) day notice of the termination of the tenancy pursuant to the Town of Hempstead and the Section 8 Housing Assistance Program regulations.
The parties entered into a stipulation of settlement, dated January 28, 2005 which provided that respondents would vacate by April 15, 2005. When respondents failed to vacate, the said judgment and warrant were issued based upon an affidavit of default.
Respondents claim that petitioners accepted their payment of $352.00 for May of 2005 and thereby reinstated the tenancy and waived their "rights under the judgment to remove the respondents," see affirmation of respondents' attorney.
Counsel for respondents cite Bush v. 280 Park Avenue South Associates, 2003 WL 2004436, for the proposition that an issue of fact exists on whether the acceptance of the May rent reinstated the tenancy. The Court in Bush indicated the intent of the parties controls as to whether a new tenancy is created.
This Court rejects respondents claim that the tenancy was reinstated. The factors demonstrate that petitioners at all times intended to evict the tenants so that the property could be sold due to financial distress. Petition Agatha Zappala states in her affidavit, dated June 9, 2005, that:
The buyer of my home is getting very impatient. We have passed the date 30 days from the April 15, 2005 closing date. The price of real estate is rising and I cannot close and get the proceeds for the sale of my home.
Acceptance of the rent after a judgment and warrant have been issued does not prejudice petitioners right to accept the payment of rent and still evict the respondents. The Hon. Robert F. Dolan writes in Rasch's Landlord Tenant, Fourth Edition, Section 30.2 the following:
The Real Property Actions and Proceedings Law provides that acceptance of rent after the commencement of a holdover proceeding "shall not terminate such proceeding nor effect any award of possession to the landlord" or to the new lessee, where a new lessee who is entitled to possession brings the proceeding. Under this provision of the statute, a landlord can terminate a tenancy, commence a holdover summary proceeding, and during the pendency thereof, or after a judgment awarding him possession has been granted, accept rent covering a period extending beyond the termination date of the tenancy without prejudice to his rights and to the proceeding.
The above rule of law is also stated in 90 NY Jur 2d Real Property — Possession of Actions, Section 238:
In a nonpayment proceeding, a landlord's acceptance of rent after the issuance of the warrant of eviction does not affect the termination of the landlord-tenant relationship resulting from the issuance and does not affect the landlord's right to evict the tenant so long as there is no evidence that the landlord intended, by accepting rent, to revive the tenancy. The landlord does not have a positive duty to inform the tenant if he intends to accept money for back rent and still evict.CONCLUSION
Petitioners' acceptance of rent does not prejudice their right to evict the respondents. Thus petitioners are given permission to evict respondents forthwith.
So Ordered: