Recitation, as required by CPLR 2219(A), of the papers considered in the review of this motion by respondent to dismiss the petition. PAPERS NUMBERED Notice of Motion and Affidavits Annexed 1 Order to Show Cause and Affidavits Annexed Answering Affidavits 2 Replying Affidavits 3 Exhibits Stipulations Other Decision/Order Upon the foregoing cited papers, the Decision/Order in this Motion is as follows: Petitioner commenced this summary nonpayment proceeding in/about 2/2020 to recover possession of the subject premises due to unpaid rent arrears for 7/2019-1/2020 at $3,300/mo totaling $23,100. Respondent Elektra Ditto now cross-moves pursuant to CPLR §3211 (a)(2)1 to dismiss the petition on the grounds that no rental agreement existed when this proceeding was commenced and that the arrears sought accrued when there was no agreement to pay rent. Petitioner opposes and argues that, although respondent vacated the premises in 2019, respondent and her roommates permitted an occupant, Damon Gray, with whom petitioner lacked any relationship, to remain in possession. Petitioner further asserts that Mr. Gray had a written agreement with respondent to rent a room for a monthly rent of $1000 for an unspecified period of time starting 4/2019. Petitioner asserts that respondent cannot now deny any responsibility for the unpaid rent that has accrued while the occupant remained in the apartment. It is well settled that a landlord tenant relationship is always created by contract, express or implied, and will not be implied where the acts and conduct of the parties negative its existence.” Stern v. Equitable Trust Co. of NY, 238 NY 267, 269 (1924). A summary nonpayment proceeding may be maintained against a tenant who has defaulted in the payment of rent pursuant to a lease agreement. RPAPL §711(2); East Harlem Pilot Block Bldg. IV HDFC Inc. v. Diaz, 46 Misc 3d 150(A) (AT/2015); W. 152nd Assoc., LP v. Gassama, 65 Misc 3d 155(A) (AT/2019). Petitioner now claims that $138, 600 is due in rent arrears through the date of Mr. Gray’s vacatur in 12/2022. It is undisputed that the subject premises is unregulated; the last renewal lease expired on 6/30/2019; and that no tenants paid rent after the expiration of that lease. Based on these facts, there certainly was no express agreement to pay rent. Due to the lack of rent payments after the expiration of the lease and the belated vacatur of the tenants, thereafter, it also cannot be implied that there was a meeting of the minds to continue the tenancy on the same terms as the prior agreement after its expiration. Therefore, in the absence of any agreement, express or implied, no month-to-month tenancy was created obligating the payment of rent from 7/2019 forward. Petitioner’s relief for unpaid monies for this period is limited to damages for use & occupancy in a plenary action. Krantz & Phillips, LLP v. Sedaghatti, 2003 NY Slip Op 50032(u) (AT/2003). Accordingly, as the petition fails to state a cause of action for nonpayment of rent, pursuant to CPLR §409(b), the petition is discussed w/o/p to petitioner’s rights in a plenary action. Dated: August 31, 2023
