Possessory judgment is only available for current month's rent

(Civ., Bronx, Wendt, J., 11-15) Petitioner landlords sought to recover six-months' worth of unpaid rent under Real Property Law §711 from respondendts, month-to-month tenants of non-regulated premises. Respondents argued a possessory judgment could only be rendered for the current month's rent because that was the extent of their possessory interest in the premises. The court agreed but held petitioner could get a plenary judgment for the prior months' rent. It found petitioners could have terminated respondents' tenancy at any time or brought a non-payment proceeding after the first default. after its expiration, a month to month tenancy was created pursuant to RPL Sec. 232-c. Jaroslow v. Lehigh Valley Railroad Co., 23 N.Y.2d 991 (1969).

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This statutory non-payment proceeding has been commenced by the petitioner against a month-to-month tenant. The lease expired on or about July 31, 1987; after its expiration tenant commenced paying the monthly rent reserved under the lease. The premises are not subject to rent control, rent stabilization, or any other form of rent or eviction regulation. When tenant commenced paying the rent at the $600 rate reserved under the lease after its expiration, a month to month tenancy was created pursuant to RPL Sec. 232-c. Jaroslow v. Lehigh Valley Railroad Co., 23 N.Y. 2d 991 (1969).

Respondent now moves to dismiss so much of the petition that claims a possessory judgment for the five months’ rent preceding the month in which this proceeding was commenced. Respondent claims that since a monthly tenant’s possessory interest does not extend beyond any current month, petitioner may not commence a possessory non-payment proceeding under RPAPL 711 (2) for more than the current month’s rent. Since tenant is neither protected by rent stabilization nor rent control, the possessory interest may be terminated upon thirty days notice without cause. The possessory interest therefore cannot extend beyond the current month. Under RPAPL Sec. 711 (2), landlord has grounds to commence a possessory non-payment proceeding when, “…tenant has defaulted in the payment of rent, pursuant to the agreement under which the premises are held.” Since this agreement does not extend beyond any current month of a month-to-month tenancy, argues respondent, petitioner cannot obtain a possessory judgment for any months prior to the month in which the proceeding is commenced. The Court agrees, in accordance with the rulings if the Appellate Term, First Department, in Printerion Realty Corp v. Fischer-Partelow, Inc., 167 Misc. 452 (App. Tern, 1st Dept. 1938), and Earl Holding Corp. v. Glicker, 199 Misc. 223 (App. Term, 1st Dept. 1951).

Possessory judgment is only available for current month's rent

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