Park Summit Realty Corp. v. Frank
| Decision Date | 26 September 1980 |
| Parties | PARK SUMMIT REALTY CORP., Petitioner-Landlord-Appellant, v. Len FRANK, Apt. 17C 15 Central Park West (known as the Mayflower Hotel) New York, New York, Respondent-Tenant-Respondent, and Jean Frank and Duncan Harp, Apt. 17C 15 Central Park West (known as the Mayflower Hotel) New York, New York, Respondents-Occupants and/or Undertenants-Respondents. |
| Court | New York Supreme Court — Appellate Term |
Landlord appeals from a final judgment of the Civil Court of the City of New York, County of New York, entered April 17, 1980, dismissing its petition to oust tenant as a holdover from the subject premises.
Final judgment entered April 17, 1980, affirmed with $25 costs.
An issue of apparent first impression is posed for our consideration. Section 50 of the Hotel Industry Code (Code) (promulgated pursuant to New York City's Rent Stabilization Laws), forbids the eviction of a "permanent tenant" "so long as he continues to pay rent". Section 2k of the Code defines a permanent tenant as one who has resided in a hotel apartment for a period of six months.
On this appeal, the occupancy of an apartment in the Mayflower Hotel is at issue. Tenant's original three-year lease had expired in 1978. He remained in possession, however, as a "permanent tenant" under the hotel Code.
During the months of May, 1979, through January, 1980, the tenant refused to pay any rent and landlord thereupon sought to evict him. To that end, landlord served tenant with the 30-day notice provided by section 232-a of the Real Property Law for termination of month-to-month tenancies. Tenant refused to vacate the apartment at the end of the 30-day notice period. Landlord, in response, commenced this holdover proceeding. The issue for decision is whether a holdover proceeding is the proper vehicle through which landlord may seek to evict the rent-defaulting tenant, or whether the landlord is limited to a nonpayment proceeding with its more liberal allowances for cure of a tenant's rent breach.
Landlord characterized its position as to the propriety of employing a holdover proceeding to oust the "permanent tenant" for nonpayment of rent as a "simple one". According to the landlord, when tenant's three-year lease expired on July 1, 1978, he continued in possession as a "month to month permanent tenant." Landlord's claim that the tenant was a month-to-month tenant was premised on section 232-c of the Real Property Law, which states: "Where a tenant whose term is longer than one month holds over after the expiration of such term * * * if the landlord shall accept rent for any period subsequent to the expiration of such term * * * then * * * the tenancy created by the acceptance of such rent shall be a tenancy from month to month".
The landlord contends that under the above section its acceptance of rent after expiration of tenant's three-year lease created a month-to-month tenancy. As to the effect of the Hotel Code which deemed tenant a "permanent tenant"; landlord is of the view that all those regulations accomplished was to suspend a lessor's common-law rights to end, at his complete discretion, the tenant's month-to-month tenancy. That suspension was contingent, however, on the lessee's continued payment of rent. Once rent payments were withheld, argues the landlord, it was revested with its common-law right to terminate a month-to-month tenancy at its absolute pleasure. The termination, according to landlord, took effect in the instant case on November 30, 1979, the date specified in the 30-day notice. Landlord claims that with tenant's term at an end, a holdover proceeding was an eminently correct device to seek tenant's dispossession. Landlord finds support for its position in the language of section 50 of the Hotel Code that "(n)o permanent tenant * * * so long as he continues to pay rent to which the owner is entitled * * * shall be evicted except on one of the grounds specified in this Code or in the Real Property Actions and Proceedings Law" (emphasis added). Landlord reasons that a rent default permitted it to proceed with a holdover action, a "ground specified in RPAPL 711(1)".
Tenant in moving to dismiss the holdover proceeding argued that only a nonpayment proceeding could be maintained for failure to pay rent. Tenant took issue with landlord's characterization of his postlease status as that of a "month to month" tenant. Tenant claimed to be a "statutory tenant" and insisted that the structure of the Hotel Code limited the landlord to a nonpayment proceeding when a tenant failed to pay rent. Since a failure to pay rent was the foundation for landlord's holdover proceeding, it was an improper instrument to effect an ouster and should, accordingly, be dismissed. Tenant contended additionally that landlord's 30-day termination notice was defective in that it did not mention the precise grounds for which landlord was evicting tenant.
The wrangle over which summary proceeding-nonpayment or holdover-should have been brought is more than a mere conflict over the correct remedial avenue required to be traversed by the landlord. In the most tangible sense, the substantive rights of the parties hinge on whether a holdover proceeding is sustainable under the facts of this case. From landlord's perspective, the virtues of a holdover as opposed to the nonpayment proceeding are obvious. Tenant cannot (as is often true in the nonpayment proceeding) cure his default and remain in possession by tendering rent prior to the issuance of the warrant. If, as landlord argues, the month-to-month term has ended and the notice requirements of section 232-a of the Real Property Law have been fulfilled, no defense is available to tenant to avoid the force of the dispossess warrant. For these reasons, tenant strenuously maintains that a nonpayment proceeding is the only mode available to landlord to terminate his tenancy.
Tenant's position was adopted by Judge Evens who ruled that landlord's failure to institute a nonpayment proceeding warranted dismissal of his summary proceeding. Also dispositive to the court in dismissing was the fact that the 30-day...
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