265 Realty, LLC v. Trec

• Decision Date: 06 June 2013
• Docket Number: Nos. 2011–2057 K C, 2012–314 K C.,s. 2011–2057 K C, 2012–314 K C.
• Citation: 975 N.Y.S.2d 370,39 Misc.3d 150,2013 N.Y. Slip Op. 50974
• Parties: 265 REALTY, LLC, Respondent, v. Maria TREC, Tenant, Dorota Trec, Appellant, and John Doe and Jane Doe, Undertenants.
• Court: New York Supreme Court — Appellate Term

39 Misc.3d 150
975 N.Y.S.2d 370
2013 N.Y. Slip Op. 50974

265 REALTY, LLC, Respondent,
v.
Maria TREC, Tenant,
Dorota Trec, Appellant,
and
John Doe and Jane Doe, Undertenants.

Nos. 2011–2057 K C, 2012–314 K C.

Supreme Court, Appellate Term,
2nd, 11th and 13th Judicial Districts.

June 6, 2013.

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 N.Y.2d 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 N.Y.2d 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 N.Y. 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.