Opinion
October 30, 1961
In a summary proceeding to recover possession of real property, the petitioner-landlord appeals from a final order of the County Court, Westchester County, entered August 16, 1960 upon the decision of the court, dismissing the petition, after a nonjury trial. Order affirmed, with costs. The original lease was for a 10-year term commencing February 1, 1950 and terminating January 31, 1960, at a rental of $10,000 per annum, payable in monthly installments. The pertinent clause in the lease provided that the tenant at its option is entitled to two successive five-year terms under the same terms and conditions, and "Unless the Tenant shall have given the Landlord at least thirty days' notice of its intention not to extend this lease at its expiration or at the expiration of any extension period herein referred to, except the last extension period, it shall be considered as having elected to avail itself of said option from term to term, without further notice to the Landlord." Prior to the expiration of the initial term, the landlord failed to give the notice required by section 230 Real Prop. of the Real Property Law. The tenant gave no notice as to its intention to surrender or to remain in possession of the premises. Following the termination of the 10-year period, the landlord accepted three monthly rent installments and then gave notice to the tenant of its intention to terminate the tenancy. Thereafter the instant proceeding to recover possession of the property was instituted by the landlord. The landlord contended that under section 232-c Real Prop. of the Real Property Law the acceptance of rent after the termination of the original term, in the absence of any notice of intention by either party, created a month-to-month tenancy, which it (the landlord) had terminated by serving the tenant with the usual 30-day notice. In our opinion, on the facts in this case said section has no application. Beldock, Acting P.J., Ughetta, Kleinfeld, Pette and Brennan, JJ., concur.