Opinion
2003-903 SC.
Decided July 6, 2004.
Appeal by tenant from a final judgment of the District Court, Suffolk County (C. Hackeling, J.), entered June 4, 2003, awarding landlord possession and the sum of $3,460.
Final judgment unanimously reversed without costs and petition dismissed.
PRESENT: McCABE, P.J., RUDOLPH and ANGIOLILLO, JJ.
Real Property Law § 232-c provides that the tenancy created by an acceptance of rent after the expiration of a lease term "shall be a tenancy from month to month commencing on the first day after the expiration of such term". Real Property Law § 232-b provides that a month-to-month tenancy outside the City of New York may be terminated by a landlord "by notifying the [tenant] at least one month before the expiration of the term of his election to terminate". To be effective, the termination notice must terminate the tenancy at the expiration of the rental month ( People ex rel Botsford v. Darling, 47 NY 666; Witherbee, Sherman Co. v. Wykes, 159 App Div 24; Ferro v. Lawrence, 195 Misc 2d 529; Hunt v. Hart, 188 Misc 534).
In the instant case, it was stipulated that tenant's lease expired on September 24, 2002. Landlord claims that only a month-to-month tenancy arose thereafter and that it terminated the month-to-month tenancy by serving a notice on December 28, 2002 effective January 31, 2003. Assuming, as landlord contends, that only a month-to-month tenancy arose, the tenancy month ran from the 25th of the month to the 24th of the next month. Inasmuch as landlord's termination notice did not terminate the tenancy one month prior to the expiration of a tenancy month and did not terminate the tenancy on its expiration date, the notice was defective. Accordingly, the petition must be dismissed. We reach no other issue.