Recitation, as required by CPLR §2219(a), of the papers considered in the review of this motion. Papers Respondent’s Notice of Motion, Affirmation, Affidavits, Exhibits 1 Petitioner’s Affirmation in Opposition, Affidavit, Exhibits 2 Respondent’s Reply Memorandum, Exhibits 3 DECISION/ORDER After argument on the motion, the Court decides as follows: The underlying proceeding is an unregulated holdover wherein the petitioner allegedly terminated the tenancy on June 15, 2022, by service of a ninety-day notice of Termination. Respondent now moves, by their attorney, for an Order seeking dismissal of the petition pursuant to CPLR 3211(a)(7) alleging petitioner failed to properly terminate the tenancy since the termination date did not coincide with the expiration of the lease term, or in the alternative, leave to amend their answer. Petitioner opposes the motion and contends that the amended RPL 232-a allows the petitioner to terminate an undefined monthly term by the statutory time requirements, not a specific date. They argue that the amendment made to RPL 232-a by the HSTPA of 2019, wherein the language regarding termination notices for month-to-month tenancies was changed from must be served “at least thirty days before the expiration of the term” to “on the day which his term expires”. (RPL 232-a). Petitioner argues that distinction refers to the termination notice’s date rather than the month’s end. A month-to-month tenancy is not usually nor necessarily predicated on a defined term contract. Since there is typically no contract but rather an oral agreement to pay rent for a monthly term with no specified termination date, the arrangement continues indefinitely until the parties mutually or otherwise terminate the tenancy. In this Court’s experience, the overwhelming majority of unregulated holdovers adhere to that common term of a calendar month. To determine if there is a specific implied term, the Court looks at the behavior and practice of the parties, as well as their understanding of the agreement. If rent is due on the first of the month, it can be implied that the first is the beginning of the term, and the last day of the month is the end. Here, the respondent contends their term was a monthly term by calendar month. Petitioner argued that is irrelevant since the amended RPL 232-a only mentions “the date on which the term expires.” By the evidence before the Court, the respondent appears to be correct. The Petition itself infers the term is by calendar month in the last paragraph of the Petition, where they seek use and occupancy with interest from May 1, 2022. This Court does not extrapolate the interpretation of the amended RPL 232-a to mean the petitioner can randomly choose the term merely because the arrangement lacks a written lease. The terms are understood by the parties and inferred by their history and practice. If there is not enough circumstantial evidence to conclude the term, a calendar month is the most reasonable and understandable term on which to rely. Accordingly, the respondent’s motion is GRANTED. The petition is dismissed. This constitutes the Decision and Order of the Court. Dated: October 27, 2023
