Scott E. Mollen

Landlord-Tenant—Lease addendum Language As to a Renewal Lease Was Unenforceable, Based on the Doctrine of Definiteness—Lacked Amount of Rent and Duration of the Lease

A landlord commenced a holdover proceeding. The landlord had rented the premises to the tenant commencing May 1, 2009 and ending on April 30, 2010. The petition alleged that the tenant had continued as a month-to-month tenant, that a thirty-day notice of termination (notice) had been served, ending the tenancy as of Feb. 28, 2017. The tenant moved to dismiss the petition.   The tenant submitted a lease dated March 24, 2009, for the term commencing May 1, 2009 and ending April 30, 2010. That lease provided for a monthly rent of $1,300 and a lease addendum (addendum) further provided, that “[a]fter one year period tenant can remain in the house as long as tenant needs, tenant must be offered a renewal of the lease by landlord.”

The tenant argued that it had never been offered a renewal lease and therefore, the landlord violated the terms of the lease. The tenant further asserted that an offer of a renewal lease was a condition precedent to terminate the tenancy and that the lease had been extended for an additional year by the landlord’s acceptance of the same rent for the last seven years.

The landlord asserted that when the lease expired on April 30, 2010, the parties had agreed that the tenant would remain for an additional one-year term at the original rent of $1,300 and that continued each year until April 30, 2014. The landlord alleged that he stopped renewing the yearly extension in 2014, because of the tenant’s “erratic behavior.” The landlord alleged that he had offered to allow the tenant “to remain as a month-to-month tenant with a monthly rent of $1,400.00 instead of $1,300,” but claimed that the tenant had “refused to pay the increase.” The landlord further claimed that “he attempted to raise the monthly rent in April 2015 to $1,500, but [tenant] refused the increase.” The landlord alleged that in 2016, he again tried to increase the monthly rent to $1,600, but the tenant had again rejected such proposed increase.

The landlord argued that the tenant is liable for $8,100 of back rent and that the parties had “never had a meeting of the minds with respect to a lease renewal.” The landlord further explained that he now has “a disgruntled, unstable, frankly frightening man occupying [landlord’s] property at well below market use and occupancy, refusing to leave, refusing to pay market rates, and wreaking havoc on [landlord’s] life.” The landlord viewed the tenant as a “high risk to himself” and the property, as well as an adjacent tenant and people in the immediate vicinity, because of the tenant’s “unstable” condition and the presence of a gas stove on the premises. Additionally, the landlord alleged that the tenant had “health issues” that made it necessary for the tenant one night to be rushed to a hospital emergency room and the tenant had repeatedly refused “to provide contact information of anyone who can act as his next of kin.” The landlord contended that the law does not require him to rent to the tenant “in perpetuity at terms that only he can conspire. To find in his favor would amount to an unlawful ‘taking’ of my rights to my own property.”

The landlord also argued that the tenant’s moving papers lacked an affidavit by “someone with personal or ‘first hand knowledge’ of the facts,” and the tenant’s attorney’s affirmation was insufficient on the motion to dismiss. Moreover, the landlord asserted that the addendum with respect to a renewal lease was “unenforceable because the necessary elements to form a lease are missing.”

The court granted the landlord’s motion to dismiss. Judicial precedent held that “[t]o constitute a valid agreement for the lease of real property, the parties must have reached final agreement upon all its essential terms, without reservation of any term for future negotiations chronic This is especially true of the amount to be paid for rent….”

The court distinguished this case from situations “where the four corners of the leases or contracts themselves contain a procedure whereby the missing term can be reasonably supplied….” The court found that the lease renewal language in the addendum was “too indefinite to impose a contractual obligation upon [landlord].” The addendum constituted “an agreement to agree, and is rendered unenforceable by the doctrine of definiteness.” The addendum lacked key terms, i.e., the “price to be paid and duration of the lease.”

The tenant had argued that the landlord had “extended the lease a year by accepting the rent from [tenant].” However, the court explained that “Real Property Law §232-C provides that a tenant becomes a month-to-month tenant after expiration of the lease, by the landlord accepting rent unless the agreement provides otherwise.” Here, the tenant became a month-to-month tenant after the landlord stopped extending the lease for a year. There was no language in the addendum providing for a further extension of the lease beyond a month by the landlord accepting rent.

Finally, the court noted that the landlord had offered the tenant a renewal lease and had complied with the addendum.

Gennarelli v. Cherkovsky, LT-001405-17, NYLJ 1202798191022, at *1 (Dist., NA, Decided Sept. 13, 2017), Fairgrieve, J.

Landlord-Tenant—Chronic Non-Payment Holdover Proceeding—Regulated, Disabled Senior Citizen Tenant Evicted—Court was Sympathetic, But Tenant Repeatedly Failed to Comply With Two Stipulations and Six Court Orders


This decision involved a chronic non-payment holdover proceeding. The tenant is a rent-stabilized tenant who is “disabled, legally blind, and a senior citizen.” The court reviewed the terms of a stipulation which included a final judgment of possession and incorporated an 18-month “probation” period for the tenant to timely pay her rent. Following such stipulation, there were numerous defaults which required multiple court appearances.

The tenant had requested assistance from the city’s Human Resources Administration (HRA). She asserted that she had also “asked her brother-in-law to help her, but he was unable to help thus far.” The landlord argued that it had been compelled to bring ten orders to show cause and the tenant had “consistently failed to pay her rental arrears and ongoing use and occupancy on time, despite multiple probationary stipulations and court orders.” Moreover, the tenant had not demonstrated her ability to pay the arrears. The landlord emphasized that the tenant had “consistently defaulted throughout the almost one and a half year duration of this proceeding” and that “further extensions would prejudice the [landlord].”

The court explained that “repeated breaches of the agreement to pay rent on time is not de minimus.” Appellate authority has held that “stipulation of settlements involving chronic late payment holdovers, especially those with multiple stipulations and orders of extensions, after multiple defaults are to be strictly enforced.”

The court found that the tenant had “repeatedly failed to comply with the unambiguous payment terms of two stipulations and six court orders….” The court further explained that the “inability to pay does not excuse chronic late and continuing rent delinquency.” Here, the tenant failed to establish a firm commitment by the HRA to pay the funds owned. Although the tenant had subsequently shown an approval for the funds, the court opined that “it would not have changed the outcome.”

Based on tenant’s “repeated defaults in timely payment of arrears and ongoing use and occupancy, including two stipulations and six court orders,” the court held that the landlord was “entitled to execute on the warrant of eviction.”

The court acknowledged the tenant was “disabled, legally blind, and a senior citizen residing in a rent regulated unit” and that it was “sympathetic to these factors.” However, the tenant had benefitted from numerous extensions and opportunities that had been extended by the court and the landlord “should not be expected to forbear enforcing its remedy, if [tenant] did not comply with the terms of the prior agreements and orders.” The court stayed execution of the warrant of eviction for an approximate month and a half in order to permit the tenant to “vacate with dignity” and on condition that certain payments be made to the landlord.

Elton Owner I v. Payne, L&T 59667/16, NYLJ 1202797214635, at *1 (Civ., KI, Decided Aug. 28, 2017), Ortiz, J.

Landlord-Tenant—Rent Stabilization Code §2524.4(a)(1)—Owners’ Proceeding to Recover Apartment For Use By Immediate Family Member Dismissed—Testimony and Documents Contradicted Landlords’ Assertions

Landlords commenced a residential summary holdover proceeding, seeking to recover possession of an apartment (apartment) on the ground that one of the building’s owners (“A”), intends to use the apartment as his primary residence. The landlords’ notice of non-renewal (notice) stated that they sought to recover possession of the apartment because, at the time of the notice, “A” lived with his girlfriend in Long Beach, New York, and his commute to work was more than one hour and a half long. The landlords stated that the apartment would be more convenient and accessible to “A’s” place of business, and would permit him to better meet his business and family responsibilities. The tenants opposed the proceeding, arguing inter alia, that the notice was not served within “the window period, the notice lack[ed] sufficient specificity, [landlords] are not permitted to bring this proceeding, retaliatory eviction, and lack of good faith.”

Following a trial, the court held that the landlords “failed to establish that their intention to recover the…apartment for [‘A’s] use is genuine.” The court found that the landlords’ witnesses were “not credible, and their version of the facts relating to their intent to recover the apartment changed during the trial and contradicted the allegations contained in the notice of termination which was served upon [tenants].” The notice stated that “A” had a Long Beach address, “even though he had not been living at that address for some time.”  “A” claimed that the discrepancy was a mistake and that he was “a private person who did not like to share where he resided.” “A” had testified that he had moved from Long beach into a house in Garden City “which offered more privacy.” The court found that such testimony undermined the landlords’ claims, because the apartment “would not meet his professed need for great privacy.”

Additionally, evidence indicated that the landlords “intended on doing a gut rehab of the building and turning the entire first floor of the building into a commercial space.” A landlord witness had testified that they only intended to convert one side of the first floor into a commercial space. However, that testimony was “contradicted by the filings made” with the NYC Department of Buildings. The court found that such witnesses’ explanation for that discrepancy “was not credible.”

Evidence also indicated that the landlords “began to harbor feelings of resentment toward [tenants] when they refused to accept their buyout offer.” The court noted that after the tenants rejected the buyout offer, there were a series of attempts “to harass [tenants] into giving up their rent stabilized tenancy.” The landlords had begun “denying [tenants] privileges” which they had previously enjoyed, “including removing the antenna and the clothing line attached to the building.” A holdover proceeding had been commenced “shortly after [landlords] obtained ownership of the building,” based on “use of a washing machine in the apartment which is not prohibited by the lease…and simply required the payment of surcharges.”

“A” had described “his relationship between the parties as being ‘cold,’…in contrast to his description of his relationship with other tenants in the building whom he testified he would prefer not to evict.” Additionally, a tenant had testified that she had not seen “A” in the building “as often as he testified to being in the building” and such testimony was “unrebutted and undermines [landlords’] claims.”

Finally, the court noted that “A” had “described waiting a year to seek possession of the apartment not only because [tenants] were in occupancy, but also because they had been cold and difficult with [landlords].”

Based on the foregoing testimony, the court dismissed the proceeding.

Zandieh v. Polkosnik, NYLJ 1202801183575, at *1 (Civ., KI, Decided Sept. 22, 2017), C. Gonzales, J.