Opinion
2006-1744 S C.
Decided on July 7, 2008.
Appeal from a final judgment of the District Court of Suffolk County, Sixth District (Gigi A. Spelman, J.), entered June 28, 2006. The final judgment, after a nonjury trial, awarded landlord possession and the sum of $36,000 in a nonpayment summary proceeding.
Final judgment reversed without costs and petition dismissed.
PRESENT: RUDOLPH, P.J., McCABE and TANENBAUM, JJ.
The petition in this nonpayment proceeding alleges that tenants remained in possession of the subject house (which they had sold to landlord) pursuant to an oral rental agreement wherein they promised to pay landlord $3,000 per month rent payable on the 15th of each month. However, in his trial testimony, on appeal, and in a related Supreme Court action, landlord has insisted that the agreement entered into after the closing was that tenants could remain in the house for 30 days (for which period he alleges he received payment) and that after such period he would immediately commence eviction proceedings.
Even accepting landlord's testimony with respect to the existence of a 30-day agreement as true, landlord has failed to establish a prima facie case that there existed an oral agreement by tenants to pay $3,000 in rent on the 15th of each month, as alleged in the petition. Rather, landlord established, at most, an agreement for a fixed term of 30 days. While, in certain circumstances, a landlord may have the right to elect to treat an agreement for a fixed term of not "longer than one month" (Real Property Law § 232-c; see Matter of Jaroslow v Lehigh Val. R.R. Co., 23 NY2d 991) as having been renewed for another term or terms ( see e.g. Schuyler v Smith, 51 NY 309; 1 Tiffany Real Property § 175), landlord did not allege in the petition that he had so elected here, and the petition cannot be deemed amended to make this allegation absent an opportunity for tenants to assert defenses to such a claim, including a defense that landlord waived the right of election ( see e.g. Restatement [Second] of Property [Landlord and Tenant] § 14.4, Comments c and e). Accordingly, we reverse the final judgment and dismiss the petition on the ground that landlord failed to establish a prima facie case that there was an existing agreement to pay rent (RPAPL 711). We reach no other issue.
Rudolph, P.J., and McCabe, J., concur.
Tanenbaum, J., taking no part.