Landlord Accepted Rent Between Termination Date and Service of Holdover Petition

Landlord sued to evict month-to-month tenant after sending tenant a 30-day nonrenewal notice. When landlord subsequently sued to evict tenant, tenant asked the court to dismiss the case. Tenant claimed that landlord had renewed the tenancy by accepting rent after issuance of the 30-day notice ending on June 30, 2014, and before service of the holdover petition. The court ruled against tenant, finding that landlord didn’t waive its right to evict tenant. Tenant claimed that landlord received $625 from her on or about July 1, 2014, and also received tenant’s Section 8 rent subsidy payment from DSS on that date. Landlord served its notice of petition and petition on tenant on July 14, 2014. The court found there was no evidence that landlord intentionally waived its right to evict tenant by the acceptance of the two July 1 rent checks. There was no duty for landlord to return the two checks, which were regularly sent to pay tenant’s rent. Landlord didn’t demand rent after service of the 30-day notice or offer tenant a renewal lease. Landlord wasn’t required to allow tenant to live rent free in the apartment. The court noted that, although there were some other court decisions to the contrary, it based its decision on two decisions the Second Department handed down in 2015.

385 Bayview LLC v. Warren: 21 NYS3d 863, 2016 NY Slip Op 26001 (Dist. Ct. Nassau; 1/6/16; Fairgrieve, J)