Recitation, as Required by CPLR 2219(A), of the Papers Considered in the Review of This Motion by Respondent to Dismiss This ProceedingPapers NumberedNotice of Motion, Affidavits & Affirmation Annexed 1-2Answering Affidavits & Affirmation Annexed 12-13Replying Affidavits & Affirmation Annexed 14Memorandum of Law 3Exhibits 4-11DECISION/ORDER UPON THE FOREGOING CITED PAPERS, THE DECISION/ORDER IN THIS MOTION IS AS FOLLOWS:Petitioner commenced this nonpayment proceeding on or about September 2018, seeking to recover possession of Apartment #2C, located at 2362 Ryer Avenue, Bronx, NY 10458. The petition seeks $10,267.43 in rent arrears and fees for the period of April 2017 through August 2018.The proceeding first appeared on the Court’s calendar on September 26, 2018. On that date Petitioner failed to appear. At Respondent’s counsel’s request, the proceeding was adjourned to October 31, 2018 and the Court notified Petitioner. On October 31, 2018, Petitioner once again failed to appear. The proceeding then was adjourned to November 28, 2018 and the Court notified Petitioner. Subsequently, Respondent filed the instant motion which seeks an order dismissing the proceeding pursuant to CPLR §3211 (a)(7) and RPAPL §§711 (2) and 741 for failure to state a cause of action.In support of her motion, Respondent contends that the proceeding is predicated on the allegation that there is a current written rental agreement between the parties, even though the last lease expired in October 2017. This, Respondent maintains, is fatal to Petitioner’s rent claim herein and warrants dismissal of the proceeding. More specifically, Respondent argues that the proceeding must be dismissed because there is no valid lease agreement between the parties as Petitioner failed to offer Respondent a renewal lease since the last lease between the parties expired in October 2017. Respondent contends that although Petitioner was litigating a nonprimary residence holdover proceeding against Respondent from March 2017 through July 2018, Petitioner failed to offer Respondent a renewal lease after July 2018 when that proceeding concluded. In addition, Respondent asserts that the rent ledger provided by Petitioner reflects that since the last lease expired, the only payments made were two public assistance shelter payments made on behalf of Respondent. However, no payments were made by Respondent after October 2017 when the last renewal lease expired.In opposition, Petitioner asserts that even though the last lease between the parties expired on July 31, 2017, Respondent remained in possession of the subject premises and continued to pay rent. Pointedly, Petitioner alleges that it received payments from July 2017 through October 2017 from Respondent and from Respondent’s rental assistance program. Petitioner contends that tender of payments after the expiration of the lease term created a month-to-month tenancy under the same terms and conditions as the expired lease agreement. Petitioner also contends that the payments constitute a “meeting of the minds’ between the parties.In reply, Respondent asserts that the last renewal lease between the parties did not expire on July 31, 2017, but rather expired on October 17, 2017 as per the court’s order in the holdover proceeding between the parties. In the order which is dated July 27, 2018, the Court dismissed the petition and determined that Respondent’s last renewal lease expired on October 17, 2017 and not July 31, 2017 as Petitioner claimed.Pursuant to CPLR §3211 (a) (7), a party may move for judgment dismissing one or more causes of action asserted against him on the ground that the pleading fails to state a cause of action. On a motion to dismiss pursuant to CPLR §3211, “the pleading is to be afforded a liberal construction” and “the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one” (Leon v. Martinez, 84 NY2d 83, 88, 638 NE2d 511 [1994]) ([internal quotation marks omitted]). ([internal quotation marks omitted]).In addition, RPAPL §741 (4) requires that the petition state the facts upon which the proceeding is based, and RPAPL §711 (2) provides that a special proceeding may be maintained where the tenant has defaulted in the payment of rent, pursuant to the agreement under which the premises are held. Moreover, §232-c of the Real Property Law provides that where a tenant whose term is longer than one month holds over after the expiration of such term, such holdover over shall not give to the landlord the option to hold the tenant for a new term solely by virtue of the tenant’s holding over. In the case of such a holding over by the tenant, the landlord may proceed, in any manner permitted by law, to remove the tenant, or if the landlord shall accept rent for any period subsequent to the expiration of such term, then, unless an agreement either express or implied is made providing otherwise, the tenancy created by the acceptance of such rent shall be a tenancy from month to month.Based on the Court’s decision in the holdover proceeding preceding this nonpayment proceeding, the lease between the parties expired on October 17, 2017 and not July 31, 2017 as Petitioner claims. A review of Petitioner’s rent ledger shows that following the expiration of the last lease on October 17, 2017, Respondent did not tender any payments to Petitioner nor were any payments made on Respondent’s behalf from a third party other than two payments of $81.60 in October 2017. Notably, following the conclusion of the holdover proceeding, Petitioner failed to renew Respondent’s lease without explanation especially since “the tender of a renewal lease in conformity with the Code requirements should not be construed as vitiating the holdover proceeding or waiving landlord’s right to prosecute the proceeding” (Kibel v. Davan Enterprises, Inc., 1991 NY Misc Lexis 859 [App Term, 1st Dept 1991]). Petitioner’s contention that Respondent manifested an intent to create a month-to-month tenancy is unavailing as there has not been a single payment by Respondent since October 2017 which would evince her intent to continue the tenancy (see Omansky v. 160 Chambers Street Owners, Inc., 155 AD3d 460, 64 NYS3d 212 [1st Dept 2017]). The Court notes that notwithstanding the renewal lease executed by parties following the commencement of this nonpayment proceeding, the rent sought in the petition is for a period of time during which there was no agreement between the parties pursuant to which Respondent agreed to pay rent as is required by RPAPL §711 (2). Petitioner’s remedy is limited to recovery in a plenary action on a quantum meruit basis.Based on the foregoing, Respondent’s motion seeking an order dismissing this proceeding is GRANTED and the petition is hereby dismissed.This constitutes the decision and order of the Court.Dated: May 15, 2019
