This matter came on for a non-jury trial before the undersigned on December 18, 2023. Plaintiff has a long term lease on property located at 6077 Jericho Turnpike, Commack, New York. There are two areas on the property, one for gas service and the other for motor vehicle repair service. Plaintiff and defendant entered into a sublease for the month of October, 2019, and month to month thereafter for the repair area, which included three bays (Exhibit 1). There is nothing in the sublease or otherwise which required any type of termination notice by the sub-tenant. The sub-tenant continued to pay the monthly rent of $6,000 for the period October, 2019 through March, 2020. Allen Leon, the owner of Leon Petroleum LLC, testified that he visited the premises in early April of 2020 for the purpose of collecting the rent and observed that the repair area appeared to be vacant. He noted that tools and the three vehicle lifts had been removed. Mr. Leon received an empty envelope in the mail later on in April with a return address of 6077 Jericho Turnpike. He then phoned defendant at which time they had a discussion where Mr. Leon first learned that it was defendant’s intent to terminate its occupancy of the premises. Subsequently, defendant mailed the keys to plaintiff, which Mr. Leon acknowledged receiving in a second mailing. Mr. Leon then had his painter come in and perform de-greasing of walls and repair of sheet rock at a cost of $990.96, which he sent to defendant in an invoice dated May 26, 2020. Plaintiff began to seek a new tenant for the repair area in May of 2020, eventually signing a new sublease in July of 2020. The new tenant took occupancy August 1, 2020 and starting paying rent on September 1, 2020. In addition to the invoice for the repair work, plaintiff invoiced defendant for rent of $6,000 per month for the period April 1, 2020 through August of 2020, a period of five months totaling $30,000. Plaintiff seeks to recover from defendant the sum of $30,990.96. Plaintiff claims that Real Property Law §232-b, requires month to month tenants to give a thirty day notice to the landlord as a precondition to termination of the tenancy. Thus, since defendant was a month to month tenant, a thirty day notice was required. The statute does not require the notice to be in writing. It is not disputed that plaintiff had notice as of late April, 2020, when defendant and Mr. Leon had a telephone conversation. Mr. Leon could not recall the specific words of that telephone call. He could recall that the subjects discussed the return of the keys and defendant’s intention to vacate and not return. It is clear to the court based upon the testimony and documentary evidence that defendant had vacated as of March 31, 2020 and that no prior notice of any kind was given to plaintiff. Defendant would be required to provide plaintiff with a thirty (30) notice if a month to month tenancy existed between the parties as opposed to a tenancy for a definite term. In contrast, if only a “monthly tenancy” had been created, then the thirty (30) notice as required in a “month to month tenancy” would not be necessary. See Carlo v. Koch-Matthews, 53 Misc.3d 466, 468-469 (City Co. Albany Co. 2016) (“New York common law differentiates between a monthly tenancy and a month to month tenancy. Although sounding similar, a monthly tenancy and a month to month are different terms with quite different meaning. A monthly tenancy has a fixed term and the tenancy ends even in the absence of notice; a month-to-month tenancy has an indefinite term and continues until terminated by notice [citation omitted]“. 53 Misc.3d at 471). In either case, in order to terminate a tenancy, there has to be an effective surrender of the premises. Unless specified in a contractual agreement, the determination of what actions constitute an effective surrender is a factual issue to be decided on a case by case basis. Ford Coyle Properties, Inc. v. 3029 Avenue v. Realty, LLC, 63 A.D.3d 782 (2nd Dep’t 2009). The court finds that the relationship between the parties was a month to month tenancy. The first paragraph of the sublease states as follows: “That the tenant shall pay the annual rent of $6,000 per month said rent to be paid in equal monthly payments in advance on the 1st day of each and every month during the term aforesaid, as follows: Month to Month.” (Handwritten terms are in italics). Since the term “month to month” has a clear meaning in both statutory and common law, there is no question that this was a month to month tenancy and that a thirty (30) day notice is required. Accordingly, absent an effective surrender accepted by the plaintiff, defendant would be liable for the rent for the months of April and May on the basis that the only notice given to the landlord was in the latter part of April when they spoke on the phone. Based upon the foregoing, defendant is liable to plaintiff for rent for the month of April, 2020, not having given notice or effectively surrendering the leasehold. The evidence establishes that defendant merely packed up and left without any communication to the landlord. The only time defendant communicated its intention to plaintiff was in a phone call in the latter part of April, 2020. Defendant returned the keys to the landlord also in the latter part of April, 2020. The landlord unconditionally accepted the keys and thereafter proceeded to inspect and repair the premises. Plaintiff also paid for a new paint job after the repairs were completed and in May, 2020 sought to re-let the premises. Absent terms in the sublease that defined an effective surrender or some other agreement or an expressed reservation of rights, the court finds that the plaintiff-landlord accepted the surrender of the premises in late April of 2020 by accepting the keys without communicating a reservation of rights to future rent orally to defendant in the April phone or in any written communication to defendant. By accepting the keys under these circumstances, the court finds that plaintiff waived any right to rent for May of 2020 or beyond. Plaintiff incurred expenses in the amount of $990.96 to repair the premises for conditions attributable to defendant. Due notice and an invoice were given to defendant. There was no rebuttal evidence to this claim. The court finds defendant liable for this amount. The court dismisses defendant’s counterclaim as no evidence was adduced to support any award against plaintiff. Accordingly, the court finds in favor of plaintiff for the sum of $6,000 for rent due for the month of April, 2020 and the sum of $990.96, with statutory costs and statutory interest from August 4, 2020. Settle judgment on ten (10) days’ notice. X FINAL DISPOSITION NON-FINAL DISPOSITION Dated: December 19, 2023
