In the recent case of Fairfield Beach 9th, LLC v Shepard-Neely, 182 NYS3d 486 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022] the Appellate Term held that a nonpayment proceeding lies only where a “tenant has defaulted in the payment of rent, pursuant to the agreement under which the premises are held” (RPAPL 711 [2]) or, in other words, there must be a rental agreement in effect at the time the proceeding is commenced pursuant to which rent is due and owing in order to commence a nonpayment proceeding.

If a tenant has not renewed their lease and a proper offer was made, with supporting documents to prove the offer was sent timely, the correct proceeding is a holdover proceeding. If a renewal lease was not timely offered, then a landlord is required to offer the tenant(s) the option of: (a) a renewal at the rent which would have begun upon the expiration of the last executed lease, with the increase not being charged to the tenant until the first month after ninety days after the offer is made and (b) a renewal lease commencing 90 days after the lease is offered.

The court, this week, took it a step further in WFHA Rockaway L.P. v. Lucille Stevens by refusing to issue a judgment and warrant upon the tenant’s failure to answer stating that Petitioner failed to plead in the petition or provide proof of a “current” rental agreement. As it is taking almost five months to have warrants ruled upon, this denial is extremely prejudicial to Landlords.

This will now require you to provide information on the last executed lease term when commencing a new nonpayment proceeding to determine whether that is the correct proceeding to commence. If you have any questions or are not sure how to proceed against a tenant not living up to their obligations, don’t hesitate to reach out to Daniels Norelli Cecere & Tavel, PC.

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