Landlord Can Sue Tenant for Trespass After Tenant Moved Out and Left Roommate Behind

Landlord sued month-to-month tenant in March 2021, claiming that the tenancy commenced in 2016, that tenant had disappeared in February 2021 without surrendering the apartment, that tenant's roommate was left behind, that landlord gave tenant no consent to admit the roommate to the apartment, and that tenant couldn't surrender the apartment until he had removed the roommate and any other subtenants. Landlord argued that there was a breach of the month-to-month tenancy, trespass to land, nuisance, tort, and waste.

Tenant asked the court to dismiss the case for failure to state any claim for which relief could be granted. Tenant had been the roommate of the prior apartment tenant and when that tenant moved out, landlord gave tenant payment instructions. Over time, tenant claimed that he'd had three roommates that landlord didn't object to. Tenant also claimed that the current roommate moved into the apartment in August 2019 with landlord's knowledge.

During 2020, the roommate lost her job, stopped paying her share of rent, and her relationship with tenant became hostile. Tenant, again with landlord's knowledge, made some attempt to evict the roommate but that remained unresolved and tenant eventually moved out after getting an order of protection against the roommate.

The court ruled for tenant in part, dismissing some of landlord's causes of action. A month-to-month tenant can terminate a tenancy at any time so there was no breach of an obligation by moving out. The court also dismissed the tort claim because landlord failed to allege that tenant's sole motivation was "disinterested malevolence" and the complaint failed to state any special damages.

But landlord had sufficiently stated a claim for trespass against tenant, since tenant had a duty to landlord to exercise ordinary care against the acts of third parties. Landlord's complaint also sufficiently stated a claim for nuisance because landlord alleged that tenant interfered with landlord's right to use its premises by permitting the roommate to enter the apartment and failing to remove her. And landlord sufficiently stated a claim for waste since it claimed that tenant and/or his roommate had intentionally, purposefully, recklessly, or negligently damaged landlord's property, including two bedrooms, in the apartment, causing $1,200 in damages to date. So landlord could go forward with the trespass, nuisance, and waste claims against tenant.

25-86 41st St. LLC v. Chong: Index No. 704854/2021, 2021 NY Slip Op 31982(U)(Sup. Ct. Queens; 7/9/21; McDonald, J)