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Civil Court, City of New York.

Parkchester Preservation Company LP, Plaintiff, v. Janeth Vargas, ANIBAL RIVERA, Defendants.


Decided: September 28, 2017

Appearances of counsel: Plaintiff Robert E. Judge, P.C., by Richard P. Byrne, Esq. Defendant Janeth Vargas Legal Aid Society, by Diane N. Johnston, Esq. Defendant Anibal Rivera (default)

In this landlord/tenant action, Plaintiff/Landlord Parkchester Preservation Company LP (‘Parkchester‘) seeks $7,478.81 1 in unpaid rent from Defendants/Co-tenants Janeth Vargas and Anibal Rivera for June 2011 through March 2012.2 After trial and having considered the post-trial submissions of the parties, the Court finds in favor of Defendant Janeth Vargas and dismisses Parkchester's Complaint against her.


At trial, Plaintiff's Resident and Legal Services Supervisor Hedy Bucala and Vargas both testified credibly to establish the following, essentially undisputed facts. Vargas and Rivera were co-tenants on a two-year lease and rider expiring on June 30, 2011 for an apartment located at 1735 Purdy Street, Apartment 3E, Bronx, New York (the ‘Apartment;‘ Pl Exh 1 [the ‘Lease‘; the ‘Rider‘] ). Pursuant to the Lease, Vargas paid a $1,870.00 security deposit, equal to two months of rent.

Vargas never renewed the Lease. Rather, in March of 2011, because of domestic violence, Vargas vacated the apartment and left the keys there.3 After her vacatur, Vargas never returned to the apartment. However, payments on the account continued until May of 2011, after which Rivera also left, for reasons unknown. Neither Vargas nor Rivera provided notice to Parkchester of their intentions to vacate the apartment. The Lease terminated on June 30, 2011.

In September of 2011, Parkchester filed a holdover action in Bronx County Housing Court, alleging that the ‘tenant's term has expired by its own terms‘ (Def Exh A, ¶ 9). After Parkchester's process server unsuccessfully attempted personal service at the Apartment twice, she effectuated conspicuous service (Def Exh B). On November 15, 2011, Judgment of Possession was entered in favor of Parkchester on default (Pl Exh 2). Several months later, on March 7, 2012, the Marshal executed a warrant of eviction (id.).


At trial, Parkchester argued that Vargas is liable for unpaid rent because she failed to properly surrender the premises.

Vargas argues for dismissal on several bases: first, that Parkchester could not prevail on a breach of contract claim for the months following the expiration of the Lease because the Contract had, by its terms, already terminated after June of 2011; second, that Vargas was not liable for rent because no holdover tenancy was created after her departure from the apartment; and third, that Parkchester did not meet its burden to claim use and occupancy.

Parkchester first argues that Vargas is liable, jointly and severally with Rivera, for unpaid rent under the Lease because Vargas did not properly surrender the premises by surrendering the keys and leaving the premises vacant at the conclusion of the Lease's term.

The elements of a breach of contract claim are the existence of a contract, the plaintiff's performance thereunder, the defendant's breach thereof, and resulting damages (Harris v Seward Park Hous. Corp., 79 AD3d 425, 426 [1st Dept 2010]). Construction of a written contract is a question of law, as long as the contract is unambiguous and the intent of the parties can be determined from the face of the agreement (Mallad Constr. Corp. v County Fed. Sav. & Loan Assn., 32 NY2d 285, 291 [1973]). When a contract is unambiguous, the court must enforce it as written and may not look to extrinsic evidence to give meaning to its terms (Vintage LLC v Laws Construction Corp., 13 NY3d 847, 849 [2009]). Where interpretation of a contract term is susceptible to varying reasonable interpretations, a fact finder may resolve that ambiguity (Time Warner Entertainment Co. v Brustowsky, 221 AD2d 268 [1st Dept 1995]). Any ambiguity is construed against the drafter (327 Realty, LLC v Nextel of New York, Inc., 150 AD3d 581, 582 [1st Dept 2017]).

A lease provides the exclusive right of possession to a tenant ‘for a specified term‘; here, until June 30, 2011 (Residential Landlord Tenant L. in NY § 2:2 [emphasis added] ). There is no dispute that the Lease, by its terms, terminated at the end of June in 2011, which would have ended the parties' obligations pending compliance with Lease provisions implicated by the Lease's end (see e.g. Stahl Assoc. Co. v Mapes, (111 AD2d 626, 628 [1st Dept 1985]; 2 Rasch, NY Landlord & Tenant, Summary Proceedings § 868 [2d ed] ). The narrow issue here is whether the Lease's term was extended by Vargas's failure to comply with her end-of-tenancy obligations, thus forcing Parkchester to pursue a holdover action.

Parkchester's first argument focuses on Lease provision 39 (emphasis in original):

39. Rules


(3) All keys must be returned to Landlord at the end of the Term.

Notably, neither the manner of return nor the entity responsible for accepting return are defined, and are therefore ambiguous. Bucala testified that tenants were expected to ‘come into the office, give in a notice or just mail the keys vacating premises [sic]‘ (Tr 21:22-25). On cross-examination, however, Bucala clarified that this was her belief, but was unable to identify a specific provision in the Lease requiring that procedure (Tr 30:3-22).

To the extent that there is no dispute that the form Lease was provided to Vargas, a lay individual, by Parkchester, the ambiguity may properly be construed against Parkchester. Accordingly, the Court finds that Vargas ‘returned‘ the keys by leaving the keys in the apartment, legal possession of which reverted to Parkchester upon the Lease's end (see Webster's Dictionary [‘to bring, send, or put back to a former or proper place‘ or ‘to restore to a former or to a normal state‘] [emphases added] ).4

Parkchester also argues that Vargas did not surrender possession because she left other individuals in possession of the premises after her departure. However, Vargas testified credibly that she vacated the apartment. On cross-examination, Bucala conceded that Vargas never signed a renewal lease, paid additional rent after the Lease's end, or made any other agreement with Parkchester to pay rent (Tr 23:10-20).

Bucala also conceded that she never personally saw Vargas at the apartment after the Lease expired. Indeed, Bucala suggested that the holdover action was brought only as a matter of procedure, based on the assumption that the premises remained occupied --- an unreasonable one given the lack of any personal observations of occupation and the knowledge that payments had ceased after the Lease ended (Tr 22, et seq.). These facts also distinguish Stahl Associates Co v Mapes, relied upon by Parkchester, because the landlord in that action had specific knowledge of the subtenant's presence, as evidenced by the landlord's prior authorization of the sublease and the holdover proceeding commenced against the subtenant.

Accordingly, Bucala's assumption finds no support in any credible evidence in the record, and the Court finds that Vargas complied with the terms of the Lease and properly vacated the apartment, thus terminating any further obligations to Parkchester. On this basis alone, dismissal of the Complaint is appropriate.

For the sake of completeness, the Court addresses Parkchester's other contention that a holdover tenancy was created.

Real Property Law (RPL) § 232-c provides that

Where a tenant whose term is longer than one month holds over after the expiration of such term, such holding over shall not give to the landlord the option to hold the tenant for a new term solely by virtue of the tenant's holding over. In the case of such a holding over by the tenant, the landlord may proceed, in any manner permitted by law, to remove the tenant, or, if the landlord shall accept rent for any period subsequent to the expiration of such term, then, unless an agreement either express or implied is made providing otherwise, the tenancy created by the acceptance of such rent shall be a tenancy from month to month commencing on the first day after the expiration of such term.

‘RPL § 232—c expressly provides that the fact of holding over shall not, as it did in the common law, give to the landlord the option to bind the tenant to a new term solely by virtue of the tenant's holding over (Elliot v Polny, 132 Misc 2d 236, 238 [Civ Ct NY County 1986]). Where a lease has expired and there was no offer or acceptance of rent payments thereafter, no holdover tenancy is created (2955 Shell Assoc., L.P. v Kayani, 234 AD2d 287, 287 [2d Dept 1996], citing Matter of Jaroslow v Lehigh Val. R.R. Co., 23 NY2d 991 [1969]).

Here, as argued by Vargas and established by Parkchester's own exhibits and testimony, no payments were made after the Lease's expiration on June 30, 2011. Accordingly, no holdover tenancy existed, and rent cannot be recovered on that basis. Because the Court has determined that no holdover tenancy existed, and because there is no dispute that Vargas vacated the subject apartment, the question of whether Parkchester is entitled to use and occupancy is irrelevant (Caldwell v Am. Package Co., Inc., 57 AD3d 15, 24 [2d Dept 2008]). That question is similarly rendered irrelevant by the acknowledgement of Parkchester's counsel that ‘this is not a cause of action based on possession‘ (Tr 33:16-20).

The Court also notes that it agrees with Vargas's argument that Parkchester would, in any event, have failed to meet its burden because it has not introduced any valid certificate of occupancy entitling it to recover use and occupancy (902 Assoc., Ltd. v Total Picture Creative Services, Inc., 144 Misc 2d 316, 318 [App Term 1989] [‘Multiple Dwelling Law §§ 301 and 302 forbid an owner from recovering rent from tenants of a multiple dwelling which lacks a valid certificate of occupancy‘]; accord Jalinos v Ramkalup, 255 AD2d 293, 294 [2d Dept 1998]).


Based on the foregoing, the Court finds in favor of Defendant Janeth Vargas, and it is hereby

ORDERED and ADJUDGED that the Complaint is dismissed as against Janeth Vargas; and it is further

ORDERED that Inquest Clerk is granted as against Anibal Rivera; and it is further

ORDERED that the Clerk of Court shall enter judgment accordingly; and it is further

ORDERED that Defendant Janeth Vargas shall, within 20 days of receipt, serve a copy of this order with notice of entry upon all parties.

This constitutes the decision and order of the Court.

Dated:September 28, 2017

New York, NY


Dakota D. Ramseur, J.C.C.


1.   The basis of this sum is 10 months of rent at $935.00 per month ($9,350.00), minus, as stipulated at trial, a $1,871.19 security deposit (Tr 17:1-9).

2.   Counsel for Plaintiff — Robert E. Judge, P.C., by Richard P. Byrne, Esq.

FOOTNOTE.  FN Counsel for Janeth Vargas — Legal Aid Society, by Diane N. Johnston, Esq.

FOOTNOTE.  FN Anibal Rivera did not answer and did not appear at trial. To the extent that a default judgment has not already been entered, the matter shall be marked Inquest Clerk against Rivera.

3.   Rivera was not the perpetrator (Pl Brief at 2).

4.   Similarly, an earlier Lease provision under the same sub-paragraph provides that ‘Tenant receives no rights under these Rules.‘ One such ‘right‘ would, presumably, be continued possession of the premises.

Dakota D. Ramseur, J.

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