Judge Marc Finkelstein
Respondents tenants moved to dismiss this nonpayment proceeding involving a month-to-month tenancy with no lease between the parties. Tenants claimed a nonpayment proceeding did not lie regarding a month-to-month tenancy claiming a landlord’s only remedy was a holdover action for rent. The court noted neither party cited a more recent decision, among the ones they relied on, Tricarichi v. Moran, in which the Appellate Term stated a tenant’s assertion that a nonpayment proceeding could not be maintained because they were month-to-month tenants was incorrect. It noted Real Property Law §232-c did not abolish a landlord’s right to elect to hold a month-to-month tenant for a new term merely by his holding over. Here, the nonpayment proceeding was also based on a month-to-month tenancy where there was no current lease and tenants remained in occupancy, allegedly without paying rent. The court noted, under Moran, the landlord’s making of a rent demand, and commencement of this suit constituted an election to treat the holdover tenants as tenants for a new term. As a result, the court ruled the petition should not be dismissed, denying respondents’ motion.
