Opinion
900952003
Decided May 9, 2005.
Claimant Mildred Carroll commenced this action in Small Claims Court seeking judgment in the amount of $3,000.00. Small Claims Court defendant/Civil Court plaintiff Windsor Realty, L.L.C. then commenced an action in Civil Court against defendants Mildred Carroll and Martin Sadacca in the amount of $25,000.00. The two actions were consolidated for trial under Civil Court Index No. 90095/2003. For the purposes of this decision, Windsor Realty, L.L.C., is the plaintiff, and Mildred Carroll and Martin Sadacca are the defendants.
Defendant Mildred Carroll ("Carroll"), an 84 year old woman, leased an apartment from plaintiff Windsor Realty, L.L.C. ("Windsor") for a one year term commencing October 7, 2002. The written lease provided for a monthly rent of $2,500.00 and required Carroll to tender a security deposit of $2,500.00. At the time the lease was signed, Carroll was a resident at Flushing House, an assisted living facility. On October 14, 2002, defendant Martin Sadacca ("Sadacca"), defendant Carroll's son, informed Windsor by telephone that defendant Carroll would not be moving into the apartment.
In a letter dated October 15, 2002 addressed to Sadacca, Windsor wrote: "We wish to confirm our conversation yesterday in which you advised us that your mother, Mildred Carroll, will not be able to move into the above captioned apartment as she originally intended." In the letter, Windsor also agreed to relet the apartment, stating that it would release Carroll from her obligations of the lease once the apartment was relet. Windsor further agreed in the letter to prorate a refund of the rent paid by Carroll if and when the apartment was relet before the end of that month. Finally, the letter requested that Sadacca remove Carroll's furniture and that he "take care so as to not make any marks on the walls, etc." On October 24, 2002, Windsor spoke to Sadacca and informed him that the apartment had not been rented and that defendant was advertising in several newspapers. The apartment was finally relet on April 5, 2003, for $2,300.00 per month.
Carroll commenced an action in Small Claims Court seeking the return of the rent paid to Windsor plus a portion of the security deposit. Windsor commenced this action in Civil Court seeking damages for breach of contract, misrepresentation, unjust enrichment and legal fees. This consolidated action came to trial on April 22, 2005. Defendant Sadacca appeared pro se and as executor of the estate of deceased defendant Mildred Carroll. Plaintiff Windsor was represented by counsel.
Plaintiff Windsor's claim for misrepresentation is dismissed. Windsor has failed to establish by a fair preponderance of the evidence that it relied on Carroll's representation that she was in good health in entering into the lease agreement to Windsor's detriment. Windsor, through its members, was aware that Carroll lived in an assisted care facility. When Carroll met Windsor's members prior to signing the lease, Carroll was using a walker. At the time of the lease signing, she was assisted by her son and was accompanied by a licensed home health aide.
Plaintiff Windsor's claim for unjust enrichment is dismissed. Windsor has failed to prove that either defendant Carroll or defendant Sadacca received any benefits by entering into this lease since defendants never occupied the property, and since defendants tendered to Windsor $5,000.00 for one month's rent and security deposit.
There is no dispute that Carroll leased the apartment from the landlord Windsor pursuant to a written lease for a term of one year ending on October 31, 2003. It is also undisputed that Carroll never lived in this apartment after signing the lease on October 6, 2002, and that she remained a resident of the assisted care facility at that time. Following the telephone conversation between Sadacca and Windsor, Windsor requested that Sadacca remove any furniture that Carroll had been placed in the apartment. This was done on October 20, 2002.
A surrender by operation of law occurs when the parties to a lease both do some act so inconsistent with the landlord-tenant relationship that it indicates their intent to deem the lease terminated. Revised Research Institute v. KMGA, Inc., 68 NY2d 689 [Ct App, 1986]; Brode Enterprises Ltd. v. Durham's Bay Boat Co., Inc., 292 AD2d 681 [3rd Dept, 2002]. Ordinarily in such cases, it is a question of fact whether the landlord resumed possession for his own benefit or to relet as agents for the tenant, and the issue depends upon all of the surrounding circumstances. Schnee v. Jonas Equities, Inc., 103 Misc 2d 625 [Civ Ct, Kings County 1980] , order modified, 109 Misc 2d 221 [App Term 2nd Dept, 1981]. Once the landlord accepts the tenant's surrender of the premises, then the tenant is released from further liability for the rent. Deer Hills Hardware, Inc. v. Conlin Realty Corp., 292 AD2d 565 [2nd Dept, 2002], citing Altamuro v. Copoccetta, 212 AD2d 904 [3rd Dept, 1995].
This Court finds that the parties' acts one week after lease signing were inconsistent with the landlord-tenant relationship, indicating the parties' intent to deem the lease terminated. Windsor's letter confirmed that Ms. Carroll would not be able to move into the apartment "as she originally intended." Defendants reasonably assumed from this letter that it was Windsor's intention to resume possession and accept the defendants' surrender of the lease. The letter fails to apprise defendants of any obligation to pay rent if the apartment was not rented within one month. Rather, it mentions a refund of rent paid "if and when we rent the apartment before the end of the month." By the letter, Windsor did not make clear that it intended to act as agent of the tenant in its attempts to relet the apartment. The letter also requested removal of all furniture, which is evidence of the landlord's intention to resume possession. Accordingly, it is the judgment of this Court that there was a surrender by operation of law, and plaintiff's cause of action for breach of contract is dismissed.
Defendant Carroll's Small Claims action is also dismissed. Defendant Sadacca argued that Real Property Law 227-a(2) permits a senior citizen entering an adult care facility, a residential health care facility or a subsidized housing project to terminate his or her lease by notice in writing delivered to the lessor or owner or to the lessor's owner or agent. He argued that because of this statute, defendants are due the amount of the first month's rent plus a portion of the security deposit. The Court holds that the notice requirements under RPL 227-a were not met because notice was not accompanied by the appropriate documentation. The notice must be accompanied by documentation of admission or pending admission to the designated facility. Moreover, defendant Carroll did not comply with RPL 227-a(2) because she did not give notice in a timely fashion. The termination is effective no earlier than thirty days after the date on which the next rental payment subsequent to the date when such notice is delivered is due and payable.
All claims brought by plaintiff in its Civil Court action, Index No. 90095/2003, and all claims brought by defendants in its Small Claims action, Index No. SCK 4590/2003, are hereby dismissed.
This constitutes the Decision and Order of this Court.