Opinion
2002-1340 5 C.
Decided December 17, 2003.
Appeal by occupants from a final judgment of the District Court, Suffolk County (E. Sperzel, J., judgment; G. Brunjes, J., at trial), entered February 27, 2001, awarding petitioner possession and the sum of $22,900.
Final judgment unanimously reversed without costs and petition dismissed.
PRESENT: DOYLE, P.J., WINICK and SKELOS, JJ.
After acquiring title to occupants' premises following a tax foreclosure proceeding, petitioner mailed occupants a proposed "month to month use and occupancy agreement," which permitted occupants to remain in possession upon payment of a monthly fee. The agreement also provided, inter alia, that it "d[id] not constitute a landlord-tenant relationship" and that occupants would be deemed to have accepted the agreement "unless [petitioner received written notification to the contrary . . . within ten (10) days of receipt." Several years later, petitioner commenced the instant "nonpayment" proceeding for possession and the accumulated unpaid fees, alleging in its petition occupants' breach of a "verbal license," which license petitioner had duly revoked, and occupants' nonpayment of the fees due under the agreement. Although petitioner's only witness conceded at trial that occupants never executed the agreement or otherwise communicated their acceptance and occupant Frank Kandler categorically denied that he or any other occupant ever responded to the offer, the court concluded that occupants breached a licensing agreement and awarded petitioner possession and the sum of $22,900. Occupants appeal, and we reverse.
Whether the proposed agreement is characterized as a license or otherwise, it is undisputed that occupants never executed said agreement or otherwise acquiesced in its terms, and the clause purporting to effectuate the agreement 10 days after receipt upon occupants' failure to respond is invalid and of no effect. The instant proceeding, insofar as it is for nonpayment, does not lie because no landlord-tenant relationship exists between the parties (RPAPL 711). Were we to give effect to the petition's factual allegations rather than its caption, the petition fails in the absence of proof that occupants are petitioner's licensees. While petitioner may have been entitled to proceed against occupants pursuant to RPAPL 713 (4), we need not reach such issue since petitioner neither alleged nor proved that it complied with the requisite redemption notice provisions ( e.g., 2 Dolan, Rasch's Landlord and Tenant-Summary Proceedings § 35:27, at 546 [4th ed]). Similarly, while we do not reach the issue of whether, upon petitioner's lengthy delay in commencing an action to dispossess occupants, occupants became petitioner's tenants by sufferance (2 Dolan, Rasch's Landlord and Tenant — Summary Proceedings § 30:37, at 445-446 [4th ed]; see e.g., City of New York v. Utsey, 185 Misc 2d 715, 718 [App Term, 2d 11th Jud Dists 2000]; MASTAS v. Extra Closet, 146 Misc 2d 698, 699), we note that possession can be recovered from tenants at sufferance only after service of a 30-days' notice (Real Property Law § 228), which petitioner failed to prove.