Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion: Papers Numbered Order to show Cause/Notice of Motion and Affidavits/Affirmations annexed NYSCEF 7-11 Answering Affidavits/Affirmations NYSCEF 12-15 Reply Affidavits/Affirmations NYSCEF 16-17, 18 Memoranda of Law Other Decision/Order The court grants respondent’s motion to dismiss this proceeding for the reasons stated below. Relevant History Petitioners Blondell J. Victor and Onera A. Burnette Victor bring this holdover eviction proceeding seeking to recover possession of the unregulated subject premises at 148 East 9th Street, Apartment 1R in Brooklyn, NY. Petitioners claim that respondents are holding over after their tenancy was terminated pursuant to the terms of a 90-day termination notice. That termination notice gave respondents until December 31, 2022, to remove from the subject premises before petitioner would commence the present action. It is undisputed that the New York City Department of Social Services (“DSS”) made four payments to petitioner on respondent’s behalf totaling $1,800.00 between January 1, 2023, and the first court appearance on March 14, 2023. It is also undisputed that petitioners retained those payments and did not return them to DSS. Petitioners cashed the checks on March 17, 2023, just after the first court appearance. Respondent Jassette Johnson moves to dismiss this proceeding pursuant to CPLR §§3211(a)(1) and (7), arguing that the termination notice was vitiated by petitioner’s retention of DSS shelter payment checks during the “window period” (after the expiration of the tenancy but before the commencement of this proceeding). Petitioners oppose for several reasons, three of which the court will discuss here.1 First, petitioners argue that acceptance of rent during the window period no longer requires dismissal of the petition in the Second Department. Second, petitioners argue that retention of the DSS payments is not dismissible even if cashing of those payments would be. Third, petitioners argue that respondent likely did not know the payments were made. The court grants respondent’s motion and dismisses the petition. Waiver and Vitiation In support of its motion, Respondent relies on 92 Bergenbrooklyn, LLC v. Cisarano. 50 Misc.3d 21, 21 N.Y.S.3d 810 (AT 2nd Dep’t, 2nd, 11th & 13th Jud. Depts. 2015). Cisarano concerned a holdover proceeding brought after the termination of a month-to-month tenancy in an unregulated apartment. The Appellate Term in Cisarano held that the landlord’s acceptance of rent after the expiration of the tenancy but before service of the petition vitiated the notice of termination, requiring dismissal. See also St. Catherine of Sienna Roman Cath. Church v. 118 Convent Assoc., 44 Misc. 3d 8 (AT 2nd Dep’t, 2nd, 11th & 13th Jud. Depts. 2014). Respondent argues that petitioners’ acceptance of the DSS checks issued here likewise vitiated the termination notice and that the court should follow Cisarano in dismissing the petition. Petitioner opposes, citing Georgetown Unsold Shares, LLC v. Ledet for the proposition that landlords are allowed to accept unsolicited payments payment during the window period without vitiating the Notice of Termination. 130 A.D.3d 99 (2nd Dep’t 2015). Ledet, an Appellate Division case, was decided less than two months before Cisarano and concerned a non-primary residence holdover. Petitioner in Ledet timely served the nonrenewal or “Golub” notice on respondent between 90 and 150 days before the expiration of the lease. Golub v. Frank, 65 N.Y.2d 900 (1985). After the lease term expired, but before commencement of the holdover proceeding, the respondent tendered two unsolicited rent checks on petitioner’s managing agent, who cashed them (though it claimed it did so inadvertently). The Civil Court granted respondent’s motion to dismiss the proceeding, concluding that petitioner’s acceptance of the payments vitiated the notice of nonrenewal. The Appellate Term affirmed. The Appellate Division reversed and denied respondent’s motion to dismiss, holding that the acceptance of the rent checks, standing alone, could not support a finding that the landlord had waived its right to bring the non-primary residence holdover. The court reasoned that such a waiver would require a finding that the landlord had intentionally relinquished its right to bring the suit, and that such a waiver could not be created via “negligence, oversight, or thoughtlessness.” 130 A.D.3d at 105 (citing Plato Gen. Constr. Corp./EMCO Tech Constr. Corp., JV, LLC v. Dormitory Auth. of State of N.Y., 89 AD3d 819, 825 (2nd Dep’t 2011); Golfo v. Kycia Assoc., 45 AD3d 531, 532 (2nd Dep’t 2007); Peck v. Peck, 232 AD2d 540, 540 (2nd Dep’t 1996).) Petitioners here argue that the court should follow Ledet and refuse to dismiss the proceeding absent some showing that the petitioners had intentionally chosen to waive their right to sue. To briefly summarize: in Ledet, the Appellate Division refused to dismiss a petition after payments were accepted during the window period, finding no evidence that petitioners intended to waive their right to bring suit. Less than two months later, the Appellate Term in Cisarano upheld dismissal of a petition due to payments made during the window period, finding that those payments vitiated the termination notice sent. Neither Cisarano nor Ledet have been overturned or otherwise repudiated, and both remain binding precedent in the Second Department. These apparently contradictory holdings can only be reconciled by distinguishing between vitiation and waiver, as discussed by Hon. Michael Weisberg in Esplanade Gardens v. Simms (51 Misc.3d 1228[A] (Civ. Ct. N.Y. County 2016)) and Hon. Peter Wendt in Associated Realties v. Brown (146 Misc.2d 1069 (Civ. Ct. N.Y. County 1990).) These courts recognized that, in many instances, dismissal due to vitiation of the termination notice does not entail that a petitioner waived its right to proceed on the cause of action. This is because petitioner could bring a subsequent suit to enforce those rights after the present case is dismissed. When dismissal would not entail waiver, the court need only analyze whether the landlord accepted payments during the window period to justify dismissal. If, on the other hand, dismissal would foreclose the ability of the petitioner to enforce its rights, then a waiver analysis is required, and something more than acceptance of payments alone would be needed to justify dismissal. Consequently, the crucial difference between Cisarano and Ledet is that Ledet arose in the context of a non-primary residence holdover, where a Golub notice was required to be served prior to bringing suit. The Golub notice must be served between 90 and 150 days before the lease term, and the lease term had ended before the suit was brought. Therefore, if the petition were dismissed in Ledet, the landlord could not serve another Golub notice because the time to do so had already passed, and the landlord would therefore lose its ability to sue for respondent’s alleged misuse of the subject apartment. As such, the Appellate Division found that a waiver analysis is required when determining whether to dismiss based on payments the landlord had accepted during the window period. In the case at bar, on the other hand, petitioners would be free to bring another holdover against respondents if the court were to dismiss the proceeding. There is no time bar on service of the termination notice that initiates a holdover for an unregulated apartment where no lease is in effect, and petitioners have not raised any other issues that would prevent them from bringing another suit. Therefore, there is no waiver at issue here because petitioner is free to assert its rights in a subsequent suit. As such, the only analysis required is whether the payments were accepted during the window period. There is no dispute that they were so accepted, and the petition must therefore be dismissed. Acceptance vs. Payment Petitioners contend that dismissal is not appropriate because, though they admit they retained the DSS checks sent on behalf of respondent, they “did not deposit, negotiate, redeem or otherwise cash a single payment tendered for the use and occupation of the premises.” (Pet Opp. at 2.) Petitioners do not cite to any case law or statute in support of the distinction they draw, though they do point out that many of the cases cited by respondents discuss petitioners who had cashed or deposited the payments tendered. (Pet. Opp. at 5.) The distinction raised by petitioners between retention and deposit of the checks is not supported by the case law. Instead, the distinction to be drawn when payments are tendered during the window period is whether those payments were accepted or rejected. If a landlord rejects payments made after service of a notice of termination, the notice of termination is not vitiated. St. Catherine of Sienna Roman Cath. Church, at St. Albans v. 118 Convent Assoc. LLC, 44 Misc. 3d 8, 11 (AT 2nd Dep’t, 2nd, 11th and 13th Jud. Dists. 2014). If, on the other hand, a landlord receives rent checks and does not immediately return them or otherwise explain any inadvertence in keeping them, the retention of those checks constitutes acceptance. Roxborough Apt. Corp. V. Becker, 176 Misc.2d 503, 505 (Civ. Ct. N.Y. County 1998) (Acosta, J.). Petitioners here did not reject the payments made on the respondent’s behalf, but instead retained the checks until after the proceeding had commenced. Petitioner does not contend that these checks were retained in error. The retention of the checks constitutes acceptance no matter whether the checks were cashed or not. As such, the termination notice was vitiated, and the proceeding must be dismissed.2 Respondent’s Awareness of the Payments Petitioners argue that, because DSS and not the respondent tendered the checks at issue, the rationale underlying Cisarano and other decisions does not apply here. Petitioners contend that respondent had no role in the tender of these checks and had no way of knowing what petitioners did with the checks, and that she therefore could not have been confused by the contradictory messages sent by their accepting payment after terminating the tenancy. (Pet. Opp at 7.) Again, petitioners cite to no case law or statute in support of their position, and their argument is not supported by law. Petitioners, in essence, ask the court to institute a requirement that respondents make a showing of prejudice when asking that a petition be dismissed for acceptance of payments during the window period. There is no support for such a requirement and to institute such a requirement would be to misidentify the reason for the dismissal. The petition is not being dismissed due to any apparent confusion on the respondent’s part. Instead, the petition is being dismissed because the petitioners have staked out two inconsistent positions. On one hand, petitioner has terminated the tenancy, while on the other hand petitioner has accepted rental payments evidencing a desire to maintain the tenancy. These contradictory positions cannot be countenanced, and the petition must be dismissed. ORDERED: The motion is GRANTED. The Petition is DISMISSED. This constitutes the Decision and Order of the Court, which will be distributed to the parties by posting on NYSCEF. Dated: September 28, 2023
