Leyda Mazur, Petitioner, v. The Brew Inn, Respondent(s). (2026)

This commercial nonpayment proceeding presents the issue of whether an unsigned lease prepared in 2019 became binding through the parties' subsequent conduct. This court concludes that it did not. Although respondent remained in possession after the prior lease expired and continued to pay rent, the parties' conduct did not demonstrate mutual assent to the increased rent schedule contained in the proposed 2019 lease. But rather, respondent's continued occupancy and petitioner's acceptance of rent created a month-to-month tenancy on the terms of the prior tenancy, under which the monthly rent was $6,842.84. This court therefore awards petitioner $68,428.40 in unpaid rent for May 2025 through February 2026. This court further finds that respondent was obligated to pay pendente lite use and occupancy pursuant to Judge Kennedy's March 25, 2026 order and awards petitioner an additional $30,000 for unpaid use and occupancy from May through August 2026, for a total monetary award of $98,428.40.

A trial was held in this commercial nonpayment proceeding on May 7 and 18, 2026. Petitioner Leyda Mazur ("Mazur" or "petitioner") is the landlord of the commercial premises located at 924 Manhattan Avenue, Brooklyn. Respondent The Brew Inn ("respondent" or "Brew Inn") occupies the premises and operates a bar there. Marcin Cyran ("Cyran") is respondent's principal.

The central issue is whether an unsigned lease prepared in 2019 became the agreement governing the tenancy by virtue of the parties' subsequent conduct. This court finds that it did not. Neither party signed the proposed lease, respondent did not pay the graduated rents specified in it, and the parties' conduct did not establish mutual assent to those terms.

That determination does not mean, however, that respondent may occupy the premises without an obligation to pay rent. After expiration of the parties' prior lease, respondent remained in possession and petitioner continued to accept rent, creating a month-to-month tenancy. The parties' course of performance established monthly rent of $6,842.84. Respondent stopped paying rent after April 2025 and acknowledged at trial that rent remained unpaid from May 2025 through February 2026.

A separate issue concerns respondent's continuing possession during this proceeding. By order dated March 25, 2026, the Hon. Judge Odessa Kennedy directed respondent to pay use and occupancy ("U&O") beginning in April 2026 and to continue paying U&O for each month respondent remained in possession pendente lite. That order has never been vacated or modified. Although the decretal portion did not expressly state the monthly amount, the record establishes that the parties understood the court-ordered U&O to be $7,500 per month. This court therefore directs respondent to pay U&O accruing pursuant to that order after April 2026, less any payments already made.

FINDINGS OF FACT

The last undisputed lease between the parties was entered into in 2012 and expired in 2019. Respondent nevertheless remained in possession after its expiration. Pursuant to Cyran's email request dated November 15, 2019 (following the expiration of the 2012 lease), petitioner prepared a new lease, which was introduced as Petitioner's Exhibit 1. Cyran went to the office of petitioner's attorney concerning the lease's preparation and received a copy. There was conflicting testimony concerning what followed. On the one hand, Cyran testified that he objected to the proposed terms and refused to sign the lease. On the other hand, petitioner testified that Cyran failed to appear for the contemplated signing. However, petitioner expressly acknowledged in her testimony that neither she nor respondent had signed the proposed lease.

The lease provided for a six-year term beginning on October 15, 2019. It included future rents that were higher than the previous lease and set to increase each year. The 2012 lease (NYCEF Doc. No. 18) had included proposed future rents should it be renewed past its 2019 expiration, including a rent amount of $6,842.84 beginning on January 1, 2020.

Respondent paid $6,579 for October through December 2019, and approximately $6,842.84 beginning in January 2020. During the COVID-19 period, respondent made substantially reduced payments. Thereafter, respondent returned to payments approximating $6,842.84 rather than the increasingly higher amounts specified in the 2019 proposed lease. Petitioner's rent ledger, introduced as Exhibit 10, demonstrated the difference between the amounts charged in the proposed lease and the amounts paid from October 2019 to May 2025. The ledger listed the higher amounts in the proposed 2019 lease as "rent owed," starting with $6,806, with annual increases thereafter in the amounts of $7.014.14, $7,224.56, $7441.30 and ultimately $7,664.54. Respondent's actual payments, however, generally remained near $6,842.84 after the COVID period. From April 2020 to March 2022, respondent paid amounts varying from $1,400 to $5,000, which Cyran testified was due to financial hardship stemming from the COVID-19 pandemic. Respondent never payed the amounts contemplated by the 2019 lease.

The underlying payment and bank records corroborated the payment pattern described above. Indeed, when petitioner was asked at trial whether any check reflected the exact monthly amount required by the proposed 2019 lease, she answered "no." The payment records revealed a $1,000 payment by check number 850 that was not credited on the rent ledger. When confronted with the omission at trial, petitioner acknowledged that the payment was missing and testified that she had probably overlooked it when preparing the ledger.

In May 2025, respondent stopped paying rent, as reflected in the rent ledger (Exhibit 10). Cyran himself acknowledged in his testimony that, at a minimum, rent was owed from May 2025 through February 2026. Pursuant to an order to show cause ("OSC") filed by petitioner, Judge Kennedy ordered respondent to pay monthly U&O. Although not set forth in the decretal paragraph of the OSC, the parties understood that the amount of U&O was $7,500. The order further required respondent to "continue to tender the same for each month that it remains in possession of the Commercial Premises thereafter, pendente lite." Respondent complied with the order to the extent that it paid $7,500 for U&O in March and April 2026, as reflected in petitioner's Exhibit 10.

ANALYSIS AND CONCLUSIONS OF LAW

I. The 2019 Lease Did Not Constitute an Enforceable Agreement.

RPAPL 711(2) provides that a special proceeding may be maintained when the "tenant has defaulted in the payment of rent, pursuant to the agreement under which the premises are held." RPAPL 721(1) further provides that a "landlord or lessor" is entitled to maintain a summary proceeding to recover possession of real property. Chickery v. Prestige Catering, 2021 NY Misc. LEXIS 1965, *2 (App. Term 2d Dept. 2021). In Cyran's testimony, he admitted that rent was owed from May 2025 through February 2026. And there is no dispute that petitioner and respondent had a landlord/tenant relationship. Thus, the issue raised is whether there was an agreement within the meaning of RPAPL 711(2).

Respondent argues that since the 2019 lease was not signed and provided for a term exceeding one year, it is unenforceable under the statute of frauds. General Obligations Law ("GOL") § 5-703(2) provides: "A contract for the leasing for a longer period than one year, or for the sale, of any real property, or an interest therein, is void unless the contract or some note or memorandum thereof, expressing the consideration, is in writing, subscribed by the party to be charged, or by his lawful agent thereunto authorized by writing." Petitioner argues that respondent waived this defense since respondent did not raise statute of frauds as an affirmative defense.

CPLR 3018 (b) requires a party to plead certain affirmative defenses, including statute of frauds. The failure to plead any of the defenses listed in CPLR 3018(b) or to raise it in a timely motion pursuant to CPLR 3211 (a) generally results in a waiver. Wilmington Sav. Fund Socy., FSB v. Mendez, 240 AD3d 938, 938 (2d Dept. 2025); GMAC Mtge., LLC v Coombs, 191 AD3d 37, 40 (2d Dept. 2020). See, Roland v Benson, 30 AD3d 398, 399 (2d Dept 2006) (failure to plead the statute of frauds as an affirmative defense constituted a waiver of the defense and precluded court from considering the issue on the merits); 23/23 Communications Corp. v Gen. Motors Corp., 257 AD2d 367 (1st Dept 1999) ("Defendant waived the affirmative defense of the Statute of Frauds by failing to assert it either in its answer or a motion to dismiss, and indeed mentioning it only in a footnote in its eve-of-trial motion for summary judgment"). See also, Ng v Candelas, 55 Misc 3d 133(A), 2017 NY Slip Op. 50436(U) (App Term, 2d Dept 2017). Since respondent neither raised statute of frauds as an affirmative defense nor raised in its cross-motion to dismiss (NYSCEF DOC. #102), it waived this defense and this court is precluded from considering it.

Although the statute of frauds defense was waived, petitioner was still required to prove that the 2019 lease she seeks to enforce constitutes an agreement within the meaning of RPAPL 711(2). To form a binding contract, there must be a "meeting of the minds," i.e., a "manifestation of mutual assent sufficiently definite to assure that the parties are truly in agreement with respect to all material terms." Stonehill Capital Mgt. LLC v. Bank of the W., 28 NY3d 439, 448 (2016); 26th St. Partners, LLC v Fedn. of Organizations for New York State Mentally Disabled, Inc., 182 AD3d 543 (2d Dept 2020); 1912 Newbridge Rd., LLC v Liantonio, 172 AD3d 962, 963-964 (2d Dept. 2019). A lease agreement is not created if any "essential terms" are missing and are not otherwise discernible by objective means. Reis v J.B. Kaufman Realty Co., LLC, 181 AD3d 740, 741 (2d Dept. 2020). A "mere agreement to agree," as to an essential term which is left for future negotiations, particularly the amount to be paid to lease property, is unenforceable. Joseph Martin, Jr., Delicatessen, Inc. v. Schumacher, 52 NY2d 105, 109-110 (1981). See also, Matter of Davis v Dinkins, 206 AD2d 365, 367 (2d Dept 1994) (essential terms "include the area to be leased, the duration of the lease, and the price to be paid").

The existence of assent is determined from objective manifestations - "expressed word and deeds" Brown Bros. Electrical Contractors, Inc. v. Beam Constr. Corp., 41 NY2d 397, 399 (1977). In general, courts examine the "basic elements of the offer and the acceptance to determine whether there is an objective meeting of the minds." Utica Bldrs., LLC v Collins, 176 AD3d 897, 900 (2d Dept. 2019). This court finds that petitioner did not prove respondent's assent to the rent schedule in the 2019 lease.

The absence of signatures is not itself dispositive. Brown v. Almont, 2023 NY Misc. LEXIS 19198, *9 (Sup. Ct. Bronx Co. 2023); JF Cap. Advisors, LLC v. Merchants Hospitality LLC, 2022 NY Slip Op 34339(U), 2022 NY Misc. LEXIS 8057, *1 (Sup. Ct. NY Co. 2022). A party's conduct may constitute objective evidence of assent to an unsigned agreement. Tractebel Energy Mktg. v. AEP Power Mktg., 487 F.3d 89, 97 (2d Cir. 2007); Curreri v. Heritage Prop. Inv. Trust, Inc., 48 AD3d 505, 506-507 (2d Dept. 2008). The conduct must demonstrate assent to the particular agreement the party seeks to enforce - conduct that is more consistent with assent to an expired agreement does not establish assent to the new agreement. See, Harris v. Reagan, 221 AD3d 1069, 1072 (3d Dept. 2023) ("conduct of the parties to a contract following the expiration of that contract can operate to demonstrate that the parties impliedly agree that their rights and obligations should continue to be measured as provided in the old contract"). In the related context of partial performance, a party seeking to enforce an agreement must demonstrate that the parties' actions are "unequivocally referable" to the agreement they seek to establish. Four RH Corp. v. R&N Realty Holding, Inc., 248 AD3d 898, 901 (2d Dept. 2026)." "Unequivocally referable" conduct is conduct which is "explainable only with reference to" that agreement. Nassau Beekman, LLC v Ann/Nassau Realty, LLC, 105 AD3d 33, 39 (1st Dept 2013), quoting Anostario v Vicinanzo, 59 NY2d 662, 664 (1983).

Here, respondent's conduct did not demonstrate assent to the 2019 lease. Although respondent remained in possession after the prior lease expired, continued to pay rent, and maintained insurance, none of those acts is uniquely attributable to the proposed lease. Respondent's course of conduct is equally, if not more readily, explained by the continuation of the parties' preexisting landlord-tenant relationship. Most significantly, respondent did not perform in accordance with the rent schedule contained in the proposed lease. Instead of paying the increased rents set forth therein, respondent repeatedly tendered approximately $6,842.84 per month, which petitioner accepted over a period of years. Thus, the parties' course of conduct demonstrates an agreement to continue their landlord-tenant relationship, but not an agreement to be bound by the material terms of the 2019 lease. Because respondent's conduct is readily explainable without reference to that lease—and, with respect to the amount of rent, is inconsistent with it—the conduct neither establishes objective assent to the 2019 lease nor constitutes performance unequivocally referable to it. Accordingly, petitioner failed to establish mutual assent to the 2019 lease, and that lease cannot serve as the basis for petitioner's claim.

II. Respondent's Affirmative Defenses Do Not Establish the Lease

Petitioner also contends that respondent judicially admitted the existence and enforceability of the 2019 lease by pleading affirmative defenses based upon impossibility, frustration of purpose, and force majeure arising from the COVID-19 pandemic. It is well settled that factual admissions contained in a pleading may constitute formal judicial admissions. Re/Max of New York, Inc. v Weber, 177 AD3d 910, 914 (2d Dept 2019). Such an admission, however, must be "deliberate, clear, and unequivocal." Cook v Benjamin, 227 AD3d 847, 848 (2d Dept 2024). The references to a "lease" in respondent's fifteenth through seventeenth affirmative defenses do not satisfy that standard. Those defenses do not expressly identify the 2019 lease, and the references are made in the course of pleading alternative legal defenses concerning the effect of the COVID-19 pandemic. Moreover, CPLR 3014 expressly permits parties to plead causes of action and defenses "regardless of consistency." Accordingly, respondent's alternative pleading does not constitute a clear and unequivocal admission that the 2019 lease was formed or enforceable.

III. The Rent Demand

Respondent also argues that petitioner's rent demand was invalid because petitioner calculated arrears under the 2019 lease, failed to credit a $1,000 payment and included water charges and fines that were not established at trial. And since a proper rent demand is a prerequisite to a nonpayment proceeding, dismissal of the petition is warranted.

Pursuant to RPAPL 711(2), "a proper rent demand is a statutory prerequisite to a nonpayment proceeding and an element of a landlord's prima facie case." Boatswain v Willis, 85 Misc 3d 137(A), 2025 NY Slip Op. 50502(U) (App Term, 2d Dept 2025). The demand must include an approximate good faith amount of rent owed and "fairly apprise the tenant of the periods for which rent is allegedly due and in what amounts." Id.; see Pantigo Professional Ctr., LLC v Stankevich, 60 Misc 3d 133(A), 2018 NY Slip Op. 51039(U) (App Term, 2d Dept 2018). A landlord must also incorporate all payments received and apply them to the months to which they were intended. EOM 106-15 217th Corp. v Severine, 62 Misc 3d 141(A), 2019 NY Slip Op. 50068(U) (App Term, 2d Dept 2019). In cases where the rent price is under dispute, a petition shall not be dismissed merely because a higher rent amount is demanded, even if the landlord does not ultimately prevail in its claim for higher rent. 402 Nostrand Ave. Corp. v Smith, 19 Misc 3d 44, 46 (App Term, 2d Dept 2008). Here, the demand identified the period of respondent's default and set forth the amounts claimed by petitioner incorporating the rent amounts set forth in the 2019 lease, less payments made by respondent which were credited. Although petitioner failed to establish the increased rent amounts demanded and the water charges, and the evidence disclosed that a $1,000 payment had not been credited to the rent ledger, those discrepancies do not establish that the predicate demand was not a good-faith approximation of petitioner's claim. See, 10 Midwood LLC v. Hyacinth, 2003 NY Slip Op 50789(U), 2003 NY Misc. LEXIS 447, *2 (App. Term 2d Dept. 2003) ("minor inaccuracies in the amounts sought therein should be disregarded"). The omitted $1,000 payment was an accounting error and must be credited, but it does not establish that the entire demand lacked a good faith basis. Petitioner withdrew the water bill and it is therefore not determined herein. Accordingly, the imprecise amounts demanded shall be excluded from the judgment, but they do not invalidate the rent demand.

III. The Month-to-Month Tenancy and Rent

This court's rejection of the 2019 lease as the operative agreement does not establish that respondent is entitled to occupy the premises rent free. "When a tenant ...remains in possession on the expiration of a permit granting exclusive possession, it is a holdover and, pursuant to common law, there is implied a continuance of the tenancy on the same terms and subject to the same covenants as those contained in the original instrument." New York v. Pennsylvania R. Co., 37 NY2d 298, 300 (1975); Convale v. First 800ConeyIsland, LLC, 2026 NY App. Div. LEXIS 4463, *2 (2d Dept. 2026); Absolute Med. Servs., Inc. v. Garnerville Holding Co., Inc., 229 AD3d 665, 667 (2d Dept. 2024). Since the 2012 lease expired, a month-to-month tenancy on the same terms as those in that lease is implied, inasmuch as respondent remained in possession after the expiration of the lease and continued to pay rent, and petitioner accepted the rent. M.H. Thomasmith Co. v. Nicola Design Studio, Inc., 2024 NY Slip Op 51193(U), 2024 NY Misc. LEXIS 5832, *1 (App. Term 2d Dept. 2024); Priegue v Paulus, 2014 NY Slip Op 50662(U), 43 Misc 3d 135(A), 135A (2014) (App. Term 2d Dept. 2014).

Having found that respondent's continued occupancy created a month-to-month tenancy on the terms of the expired 2012 lease, this court must determine the rent due under that tenancy rather than under the 2019 lease. The evidence establishes that the monthly rent under the 2012 lease was $6,842.84 beginning in January 2020, and the parties' subsequent course of performance confirms that amount: respondent repeatedly tendered approximately $6,842.84 per month and petitioner accepted those payments for years.¹ Respondent ceased paying rent in May 2025 and does not dispute that no rent was paid from May 2025 through February 2026, a period of ten months. Accordingly, petitioner is awarded $68,428.40, representing ten months at $6,842.84 per month. The Court does not include the higher amounts charged pursuant to the 2019 lease because petitioner failed to establish that respondent agreed to that lease or its escalating rent schedule.

Furthermore, this Court declines to reconstruct any additional arrears for the period preceding May 2025, including the COVID-19 period. Although the trial evidence established that respondent made substantially reduced payments during that time, petitioner presented its damages claim based upon the significantly higher graduated rents set forth in the 2019 lease. Petitioner did not establish the amount of any additional pre-May 2025 arrears under the rent obligation governing the month-to-month tenancy after application of all payments and credits. This court therefore declines to award additional historical arrears for that period..

IV. USE-AND-OCCUPANCY

Pursuant to Real Property Law § 220, a residential or commercial "landlord may recover a reasonable compensation for the use and occupation of real property ... and a parol lease or other agreement may be used as evidence of the amount to which he is entitled." Congregation Erech Shai Bais Yosef, Inc. v. Werzberger, 242 AD3d 941, 943 (2d Dept. 2025).

A court has broad discretion in awarding use and occupancy pendente lite. 10E53 Owner LLC v. Bruderman Asset Mgt., 202 AD3d 609, 609 (1st Dept. 2022); Esposito v Larig, 174 AD3d 574, 576 (2d Dept. 2019). 43rd St. Deli, Inc. v Paramount Leasehold, L.P., 107 AD3d 501, 501 (1st Dept. 2013). Although the court may consider the amount of rent paid under a prior lease in setting use and occupancy, "prior rent is only probative, not dispositive, on the issue." 43rd St. Deli, Inc. v Paramount Leasehold, L.P., 107 AD3d 501, 501 (1st Dept. 2013); Wythe Berry Fee Owner LLC v. Wythe Berry LLC, 2021 NY Slip Op 51140(U), 2021 NY Misc. LEXIS 6143, *14 (Sup. Ct. Kings Co. 2021).

By order dated March 25, 2026, the Hon. Judge Odessa Kennedy directed respondent to tender monthly U&O and utilities beginning in April 2026 and continuing pendente lite while respondent remained in possession. Although petitioner had requested that monthly U&O be fixed at $7,500 in its order to show cause, the decretal portion of the order did not expressly fix that amount. However, this court finds that the interim order was an implicit determination that $7,500 was the contractual rent or the reasonable value of respondent's use and occupancy. In an In an affidavit filed with the court [NYSCEF doc. #55], Cyran averred: "In or about March 2026, respondent made a payment toward use and occupaney. With respect to April 2026, respondent has taken steps to tender $7,500 in compliance with the Court's Order." These averments establish that the parties understood the court-ordered pendente lite use and occupancy to be $7,500 per month. Petitioner's Exhibit 10 indicates that respondent made payments of $7,500 on March 1, 2026 and April 1, 2026, which further establishes that the interim order set U&O at $7,500.

Judge Kennedy's order has not been vacated or modified, and continues to govern respondent's pendente lite obligation under the law of the case doctrine. Under that doctrine, a determination made in the course of an action binds courts of coordinate jurisdiction that subsequently consider the same issue. People v. Evans, 94 NY2d 499, 502-504 (2000); Brownrigg v. New York City Hous. Auth., 29 AD3d 721, 722 (2d Dept 2006). See, Matter of Cellamare v. Lakeman, 36 AD3d 905, 905 (2d Dept. 2007) ("It is fundamental that a Judge may not review or overrule an order of another Judge of co-ordinate jurisdiction in the same action or proceeding"). Accordingly, this court is not authorized to modify the $7,500 monthly pendente lite amount. To the extent that respondent remained in possession after April 2026 without paying the $7,500 monthly U&O required by Judge Kennedy's order, petitioner is granted judgment in the amount of $30,000 for unpaid installments between May and August 2026, plus use and occupancy going forward until the issuance and execution of the warrant.

V. PERSONAL LIABILITY OF MARCIN CYRAN

Petitioner's suggestion during summation that Cyran could be personally liable if the unsigned lease were found unenforceable is rejected. The petition names The Brew Inn as respondent. Cyran was not named individually, no personal guaranty was established, and no other basis for imposing the tenant's liability upon him personally was pleaded or tried. No judgment is entered against Cyran individually.

CONCLUSION

For the foregoing reasons, this court finds that the proposed 2019 lease did not become a binding agreement between the parties. Upon expiration of the 2012 lease, respondent's continued possession and petitioner's acceptance of rent created a month-to-month tenancy on the terms of the prior tenancy. The monthly rent under that tenancy was $6,842.84.

Petitioner established that respondent failed to pay rent from May 2025 through February 2026. Petitioner is therefore awarded $68,428.40 in unpaid rent for that period. This court declines to award additional historical arrears for the period preceding May 2025 because petitioner did not establish those arrears at trial.

Respondent's obligation to pay pendente lite U&O is separately governed by Judge Kennedy's March 25, 2026 order. The record establishes that the parties understood the monthly amount required under that order to be $7,500. Respondent paid U&O for March and April 2026 but failed to pay the installments due from May through August 2026. Petitioner is therefore awarded an additional $30,000 in unpaid U&O.

Accordingly, petitioner is awarded a final judgment of possession against respondent. In a nonpayment proceeding, entitlement to possession is established upon proof of the tenant's default in the payment of rent, a proper rent demand, and a duly issued petition and notice of petition. Goldman v. MJJ Music, Inc., 2007 NY Slip Op 52163[U], 17 Misc 3d 1127[A], *3 (Civ Ct, Kings County 2007); RPAPL 711(2), 741; see also 34-15 Parsons Blvd., LLC v. Ming Hang Zhao, 74 Misc 3d 134[A], 2022 NY Slip Op 50283[U] [App Term, 2d Dept. 2022]. Furthemore, a money judgment shall be entered in favor of petitioner in the amount of $98,428.40, representing $68,428.40 in unpaid rent and $30,000 in unpaid use and occupancy. Petitioner's claim for water charges is not determined herein. No judgment is entered against Marcin Cyran individually. Issuance and execution of the warrant of eviction shall be stayed for 10 days. The earliest eviction date shall be September 21, 2026. This constitutes the Decision and Order of the Court.

DATED: 9/10/26

Hon. Tehilah H. Berman

Judge of the Civil Court, Kings County

FOOTNOTES

1.   Following substantial reductions made during the COVID-19 pandemic, respondent returned to payments at or near $6,842.84 and petitioner continued accepting them through April 2025. Petitioner's underlying bank records corroborate that payment history.

Tehilah H. Berman, J.