IN RE: GAIL HAUCK (2026)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the judgment and warrant of eviction are vacated, and the petition is dismissed without prejudice.

Memorandum: Petitioner commenced this summary nonpayment eviction proceeding pursuant to RPAPL 711 (2) based on respondents’ alleged failure to pay rent pursuant to a month-to-month tenancy. Respondents moved to dismiss the petition on the ground, inter alia, that petitioner had terminated the month-to-month tenancy and, thus, there was no legal basis for her to pursue a summary nonpayment eviction proceeding. Following a trial, Yorkshire Town Court granted the petition, based on its conclusion that respondents were holdovers following the termination of the month-to-month tenancy, and issued a judgment, awarding petitioner possession of the subject premises and a money judgment for past due rent, as well as a warrant of eviction. Respondents appealed to County Court, which affirmed the judgment of Town Court on the basis of respondents’ nonpayment of rent. Respondents now appeal to this Court.

A cause of action for a summary nonpayment eviction arises where “[t]he tenant has defaulted in the payment of rent, pursuant to the agreement under which the premises are held, and a written demand of the rent has been made with at least fourteen days’ notice requiring, in the alternative, the payment of the rent, or the possession of the premises, [and] has been served upon the tenant” (RPAPL 711 [2]). Conversely, a cause of action for a summary holdover eviction lies where “[t]he tenant continues in possession of any portion of the premises after the expiration of [the tenant's] term, without the permission of the landlord” (RPAPL 711 [1]). They are distinct causes of action (see Matter of Kern v Guller, 40 AD3d 1231, 1232 [3d Dept 2007]) that have unique characteristics (see Matter of Industrial Funding Corp. v Megna, 87 Misc 2d 443, 448 [Buffalo City Ct 1976]), including, inter alia, defenses applicable only to nonpayment proceedings (see e.g. RPAPL 749 [3]) or only to holdover proceedings (see e.g. Real Property Law § 232-c) as well as different measures of damages (see Syracuse Assoc. v Touchette Corp., 73 AD2d 813, 814 [4th Dept 1979]).

Here, respondents’ contention that the month-to-month tenancy terminated after they ceased paying rent in response to petitioner's request to increase the monthly rent amount (see Industrial Funding Corp., 87 Misc 2d at 449; Kleinman v Field, 110 Misc 111, 114 [Mun Ct, Kings County 1919]) is not properly before us inasmuch as it was raised for the first time on appeal to County Court (see Ciesinski v Town of Aurora, 202 AD2d 984, 985 [4th Dept 1994]). Nonetheless, respondents asserted before Town Court and petitioner conceded at trial that petitioner served respondents with a written notice terminating the month-to-month tenancy before she commenced this proceeding. Thus, petitioner's “remedy [is] to evict on the ground of the tenant[s’] holding over after the scheduled termination” by commencing a proceeding pursuant to RPAPL 711 (1) (Industrial Funding Corp., 87 Misc 2d at 449), and her “action for nonpayment of rent, based on a notice purporting to fix a rent, never agreed upon by tenant[s] and never paid by tenant[s], does not lie, there being no tenancy in fact or at law obligating the tenant[s] for such rent” (Matter of Jaroslow v Lehigh Val. R.R. Co., 23 NY2d 991, 993 [1969]; see Foxwood House Assoc. LLC v Yongli Xu, 82 Misc 3d 925, 928 [Civ Ct, Queens County 2024]).

Inasmuch as the petition here alleges no facts, even in the alternative, that would tend to establish that the tenancy had been terminated and respondents were holdovers, it cannot support a cause of action for a summary holdover eviction under RPAPL 711 (1) (see Kern, 40 AD3d at 1232; see generally RPAPL 741 [4]). We therefore reverse the order on appeal, vacate the judgment and warrant of eviction, and dismiss the petition without prejudice to refile.

Entered: July 24, 2026

Ann Dillon Flynn

Clerk of the Court