A number of New York courts have held that a nonpayment proceeding will not lie against a month-to-month tenant who holds over without paying rent, concluding, in effect, that a month-to-month tenancy withers and ceases to exist upon such nonpayment. A recent Appellate Division ruling casts doubt upon the validity of this line of cases.
The issue typically arises in the situation in which a tenant, after the lease expires, remains in possession and continues to pay rent for a month or more, thus creating a month-to-month tenancy “presumed as a matter of law to be controlled by the same terms as the expired lease.”1 The tenant thereafter remains in possession for a period of time without paying rent, following which the landlord elects to bring a nonpayment proceeding. Does such a proceeding lie?
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